Bill C-7: Addressing the Gaps in the Regulation of Medical Assistance in Dying (MAID)

Medical assistance in dying, or MAID, is a controversial topic that has generated much constitutional debate and litigation in Canada. For some people, providing legal access to MAID enhances the personal autonomy and dignity of people with serious illnesses, giving them “control over the manner of … [their] death.”[1] For others, though, it’s a dangerous medical advancement that “devalues the … lives” of already marginalized people and “renders them vulnerable to unwanted assistance in dying.”[2] In 2016, the Canadian Parliament weighed in on this debate when it legalized MAID for people who meet certain eligibility requirements. In 2021, the government then enacted Bill C-7 to address what it regarded as holes in the 2016 legislation.[3]

The History of MAID in Canada

Helping a person to commit suicide was, and still is, illegal under section 241(1)(b) of the Criminal Code.[4] However, through a series of amendments to the Criminal Code, exemptions were made in 2016 for medical practitioners and healthcare providers who provide MAID in accordance with certain legislative guidelines.[5]

The story of these amendments began in 1993, when the Supreme Court of Canada ruled on a case called Rodriguez v British Columbia (AG). In Rodriguez, the Court upheld the original Criminal Code provisions, which prohibited MAID under all circumstances.[6] By a 5-4 majority, the Court rejected the claim that the Criminal Code provisions unjustifiably infringed various Charter rights, including the rights contained in sections 7, 12, and 15 of the Charter. The Court held that even if section 15 — the equality rights section of the Charter — had been infringed, the blanket prohibition on assisted suicide was still legally justified because it protected vulnerable people who are at risk of being pressured into ending their lives prematurely.[7]

Just over two decades later, the Supreme Court unanimously overturned Rodriguez in Carter v Canada (AG), recognizing that people who are “grievously and irremediably ill … may be condemned to a life of severe and intolerable suffering”[8] without medical assistance in dying. In arriving at this decision, the Court considered the public’s evolving sentiments regarding MAID, as well as international precedents that had legalized MAID in other places since the Rodriguez ruling. In light of these factors, the Court held that the blanket prohibition of MAID unjustifiably violated section 7 of the Charter, which protects each individual’s right not to be deprived of life, liberty, or security of the person in a way that breaches “the principles of fundamental justice.”[9] Having dealt with the case under section 7, the Court found it unnecessary to consider whether the prohibition also violated the equality rights section of the Charter (section 15).[10]

In a rare move, then, the Supreme Court of Canada had overturned its previous ruling in Rodriguez. Rather than striking down the blanket prohibition on MAID immediately though, the Court issued a suspended declaration of invalidity so that Parliament would have time to create its own regulatory framework.[11] This prompted Parliament to pass Bill C-14, which created exemptions to the blanket prohibition by allowing medical professionals to administer MAID in accordance with strict safeguards and eligibility requirements.[12] If these requirements were met, medical practitioners would not be held criminally responsible for providing MAID.[13]

Although Bill C-14 opened the door to MAID in Canada, its eligibility requirements and safeguards were still subject to challenges under the Charter of Rights and Freedoms. These challenges were at the heart of a 2019 Quebec Superior Court case, Truchon c Procureur général du Canada.[14]

Charter Challenges to Bill C-14

The Truchon case brought up two main Charter challenges under sections 7 and 15. These challenges were directed at the requirement that a person’s natural death must be “reasonably foreseeable” before they will be eligible for MAID.

The Section 7 Challenge

In Truchon, the Superior Court found that the “reasonably foreseeable” requirement violated the liberty and personal security of people who are suffering from grievous and irremediable illnesses but are barred from accessing MAID because their natural deaths are not reasonably foreseeable.[15] More specifically, the requirement infringed on the liberty of such individuals because it prevented them from making important medical choices,[16] and it threatened their security of the person by potentially prolonging their suffering.[17] While such infringements are permissible under section 7 if they are found to be “in accordance with the principles of fundamental justice,” the Court decided that this was not the case here, since the infringements were overbroad and grossly disproportionate to the law’s intended purpose: namely, the goal of protecting vulnerable people from being taken advantage of.[18]

As with other Charter violations, a section 7 violation will be upheld by a court if it is shown to be “demonstrably justified in a free and democratic society”[19] (this possibility is laid out in section 1 of the Charter). To determine whether a violation is “demonstrably justified,” courts use a two-step test known as the Oakes test, which requires that the violation serves a “pressing and substantial objective” and is “proportionate.”[20] In Truchon, the Court concluded that the violation of section 7 could not be saved under the Oakes test. In the Court’s view, the violation was not “proportionate” because it did not “minimally impair” the claimants’ section 7 rights,[21] and because the law’s potential benefits did not outweigh its deleterious effects on seriously ill people whose deaths are not reasonably foreseeable.[22]

The Section 15 Challenge

The claimants in Truchon also asserted that the “reasonably foreseeable” requirement violated their section 15 equality rights. The claimants argued that the law discriminated against people based on the nature of their disability or illness. While a person with grievous and irremediable physical disabilities would be unable to legally obtain MAID if their natural death wasn’t reasonably foreseeable, access could be legally provided to a person with comparably serious disabilities whose natural death was reasonably foreseeable. The Court agreed with the claimants that this constituted a violation of section 15 of the Charter and could not be saved under the Oakes test.[23]

Parliament’s Response: Bill C-7

In 2021, in response to the Truchon ruling, the Canadian government introduced Bill C-7.[24] This Bill modified the eligibility requirements and safeguards for accessing MAID in an attempt to address the section 7 and section 15 Charter violations that were recognized in Truchon. To do this, Bill C-7 expanded legal MAID access by creating two sets of safeguards.[25]

On the one hand, for people whose deaths are reasonably foreseeable, Bill C-7 removed the final consent requirement and allowed them to give consent to MAID in advance (of course, they can still withdraw consent anytime).[26] This addressed concerns about people choosing to end their lives early due to fear of losing their capacity to consent.

On the other hand, for people whose deaths are not reasonably foreseeable, Bill C-7 applied slightly more stringent safeguards while now allowing them to legally access MAID. For example, Bill C-7 created a mandatory 90-day assessment period for people whose deaths are not reasonably foreseeable — a requirement that doesn’t exist for people whose deaths are naturally foreseeable.

For many, these amendments mark important step in rectifying the section 7 and 15 infringements recognized in Truchon.[28] While the safeguards are different for people whose natural deaths are not immanent, many more people who are suffering from grievous and irremediable illnesses will now have legal access to MAID, regardless of the nature of their illness.[29]

Did Bill C-7 Solve the Issues With MAID in Canada?

Although Bill C-7 addressed some of the more prevalent Charter challenges to MAID laws, it is still possible for new Charter challenges to come up in the future. For example, MAID is currently unavailable to those who are suffering solely from mental illness, which could be framed as a violation of equality rights under section 15 of the Charter insofar as it entails another distinction based on the nature of a person’s illness or disability. Whether MAID laws in Canada will be subject to further constitutional challenges will accordingly depend, in part, on whether new legislation opens up access to MAID for people suffering solely from mental illness (note: new legislation is expected by the end of March 2023).

[1] Carter v Canada (AG), 2015 SCC 5 at para 10 [Carter].

[2] Ibid at para 10.

[3] Bill C-7: An act to amend the Criminal Code (medical assistance in dying) (September 2021), online: Charter Statements <https://www.justice.gc.ca/eng/csj-sjc/pl/charter-charte/c7.html>.

[4] Criminal Code, RSC 1985, c C-46, s 241(1)(b).

[5] Ibid at s 241(2).

[6] Rodriguez v British Columbia (AG), [1993] 3 SCR 519, 107 DLR (4th) 342.

[7] Ibid.

[8] Carter, supra note 1 at para 1.

[9] Ibid.

[10] Ibid at para 93.

[11] Ibid at para 128.

[12] Bill C-14, An Act to amend the Criminal Code and to make amendments related to other Acts (medical assistance in dying), 1st Sess, 42nd Parl, 2016, (assented to 16 June 2016) SC 2016 c 3.

[13] Ibid at cl 1.

[14] Truchon c Procureur général du Canada, 2019 QCCS 3792 [Truchon].

[15] Ibid at para 522.

[16] Ibid at para 527.

[17] Ibid at para 528.

[18] Ibid at paras 536-544.

[19] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 1.

[20] R v Oakes, [1986] 1 SCR 103, 26 DLR (4th) 200.

[21] Truchon, supra note 14 at para 617.

[22] Ibid at para 637.

[23] Ibid at para 690.

[24] Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), 2nd Sess, 43rd Parl, 2021, (assented to 17 March 2021) SC 2021 c 2.

[25] Bill C-14, supra note 12 at cl 1(3.1).

[26] Criminal Code, supra note 4, s 241.2(3).

[27] Ibid, s 241.2(3.1).

[28] Dying With Dignity, “A Triumph of Compassion and Choice: Bill C-7 Receives Royal Assent” (March 17, 2021), online: Dying With Dignity <https://www.dyingwithdignity.ca/blog/bill_c7_royal_assent/>.

[29] However, it should be noted that there is still strong opposition to Bill C-7 and MAID laws in general, and some individuals and organizations believe that MAID inherently devalues the lives of people suffering from disabilities. See PRESS RELEASE: MAiD Bill violates equality rights of people with disabilities (February 2020), online: Inclusion Canada <https://inclusioncanada.ca/2020/02/28/medical-assistance-in-dying-bill-violates-equality-rights-of-people-with-disabilities-it-must-be-stopped/>.

Right to Life, Liberty and Security of the Person

This article was written by a law student for the general public.

Right to Life, Liberty and Security of the Person

Section 7 of the Canadian Charter of Rights and Freedoms protects our right to “life, liberty, and security of the person.” It guarantees our legal rights, which protect our personal autonomy and bodily integrity from laws or actions by the government that violate those rights. However, government action that harms these rights is not enough to violate the Charter. Section 7 is violated only when the government infringes these rights in a way that goes against the principles of fundamental justice.

Therefore, in determining whether there has been a section 7 violation, there are two components to consider:

1) whether government action infringes life, liberty or security of the person, and

2) whether this infringement goes against the principles of fundamental justice

Right to Life:

There is no concrete definition of the right to life.[1] This means the definition could expand when new issues emerge. Traditionally, state action that increases the risk of death involves the right to life.[2] This includes indirect action, such as barriers to health care for life-threatening conditions. [3]

Right to Liberty:

The Supreme Court is divided on what the right to liberty means, but identifies two components:

1) freedom from physical restraint, and

2) freedom to make fundamental personal choices. [4]

The first includes laws that involve possible imprisonment and physical actions that are forced by the state.[5] Two examples are mandatory fingerprinting laws and regulations that prohibit loitering.[6] The second protects the right to “enjoy individual dignity and independence.”[7] This includes decisions about how a person wants to live his or her life, such as whether to marry or have children.[8]

Right to Security of the Person:

Security of the person “has a physical aspect and a psychological aspect.”[9] The physical aspect includes state action that prevents someone from making choices that affect his or her own body. It can also involve indirect state action, such as laws that cause a risk to health.[10] The psychological aspect is affected when a person experiences “serious state-imposed stress.”[11] This occurs when the state causes stress that is beyond day-to-day stress, such as by threatening to remove children from their parents.[12]

Principles of Fundamental Justice:

If government action infringes life, liberty or security of the person, it must conform to the basic principles of fundamental justice to comply with the Charter.

Three guidelines define principles of fundamental justice:

1) the principle must be a legal principle

2) the public must generally consider this principle to be fundamental to a fair legal system

3) the principle must provide a manageable standard to measure section 7 violations[13]

These guidelines are quite broad. Therefore, courts use the specific concepts of arbitrariness, overbreadth, and gross disproportionality to determine whether an infringement is in line with the principles of fundamental justice. [14]

Arbitrariness:

The law on arbitrariness is “not entirely settled.”[15] Traditionally, two steps determine if a law is arbitrary. First, the court must identify the law’s objective. Second, the court must consider whether the law’s effects meet this objective.[16] If the law leads to an effect that is not connected to its objective, it is considered arbitrary.[17] For example, in R v Morgentaler, the court considered laws that restricted abortions to those approved by an abortion committee. [18] The government argued the law’s objective was to protect the fetus.[19] However, getting committee approval caused delays that were detrimental to women’s health. Therefore, the law was arbitrary, because these delays were not connected to the objective of protecting the fetus.[20]

Overbreadth:

Overbreadth lets courts recognize that some laws “go beyond what is required to achieve its objective.”[21] In Bedford, the court considered the law that prohibits living off profits made from prostitution. While the law means to protect sex workers from exploitation, it prevents them from hiring drivers, receptionists, and bodyguards.[22] This law is overbroad because it prohibits some relationships that are beneficial and not exploitative.[23]

Disproportionality:

Gross disproportionality describes state action that is too extreme to justify.[24] First, the court must determine the objective of the law. Second, the court must consider whether the law’s effect is too extreme as a response to that objective.[25] If the law’s effects go beyond its objectives, it is considered disproportionate. For example, in PHS Community Services Society, the Supreme Court considered the constitutionality of refusing to allow a supervised safe injection site in Vancouver (Insite), which allowed people with addictions to use drugs without being prosecuted. Insite attempted to reduce needless deaths. The court decided that Insite caused no obvious negative impact on public health and safety.[26] Therefore, denying Insite’s services was grossly disproportionate, because of the number of lives the program saves.[27]

[1] Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms (Toronto: Irwin Law, 2013) at 235 ; Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (Markham: LexisNexis, 2013) at 626 .

[2] Régimbald, supra note 1 at 626.

[3] Ibid.

[4] Sharpe, supra note 1 at 235; Peter Hogg, Constitutional Law of Canada (Toronto: Thomson Reuters, 2007) at 47-7 .

[5] Régimbald, supra note 1 at 627.

[6] Ibid.

[7] Godbout v Longueuil (City), [1997] 3 SCR 844 at para 66.

[8] Régimbald, supra note 1at 627-628.

[9] Ibid at 628.

[10] Ibid.

[11] R v Morgentaler, [1988] 1 SCR 30 at para 22.

[12] Régimbald, supra note 1at 629-630.

[13] R v Malmo-Levine, 2003 SCC 74 at para 113 .

[14] Peter W. Hogg, “The Brilliant Career of Section 7 of the Charter” (2012) 58 The Supreme Court Law Review 201 .

[15] PHS Community Services Society v Canada (Attorney General), 2011 SCC 44 at para 132 .

[16] Ibid at paras 129-130.

[17] Canada (Attorney General) v Bedford, 2013 SCC 72 at para 101 .

[18]Morgentaler, supra note 11 at para 39.

[19] Ibid at para 256.

[20] Ibid at para 153.

[21] Bedford, supra note 17at para 35.

[22] Ibid at para 64.

[23] Ibid at para 139.

[24] Malmo-Levine, supra note 13 at para 143.

[25] Hogg, supra note 4 at 205.

[26] Insite, supra note 15 at 133.

[27] Ibid.

Ontario Court Confirms No Right to Bear Arms in Canada; Supreme Court Will Not Hear Appeal

The second amendment of the United States Constitution establishes the right to bear arms. Born out of violent revolution, the United States in 1791 was a place where it seemed essential to the survival of the nation that gun ownership be enshrined in its bill of rights. By contrast, Canada’s constitutional bill of rights, the Canadian Charter of Rights and Freedoms, came into being under much different circumstances. In 1982, Canada’s evolution from colony to modern sovereign nation was at its culmination. There was no external threat to Canada’s existence. It never occurred to the framers of the Charter to include a right to bear arms. There is at least one Canadian, however, who believes that the Charter’s silence on gun ownership is irrelevant. Bruce Montague, a firearms manufacturer and dealer in Ontario, was charged with several weapons violations. Executing a search of Montague’s home, police found more than 200 firearms and 20,000 rounds of ammunition.[1] Montague had declined to renew the registrations on his cache of weapons. He believed that he had a constitutional right to bear arms without government interference or regulation. In defence to 53 criminal charges, Montague asked the court to strike down the sections of the Firearms Act that deal with requirements to register firearms.[2] He argued that the right to bear arms has always been a part of Canada’s Constitution. His arguments failed to convince the trial court.[3] The Ontario Court of Appeal upheld the lower court’s ruling that there is no constitutional right to bear arms in Canada.[4] Montague tried to appeal the case one more time, to the Supreme Court of Canada. On September 16, 2010, the Court announced that it would not hear the appeal. As a result, the ruling that there is no Canadian right to bear arms is settled constitutional law for the foreseeable future. The Supreme Court said in 1993 that “Canadians, unlike Americans do not have a constitutional right to bear arms.”[5] Montague will not have a chance to change the Court’s mind.

The English Bill of Rights, 1689

Monague argued that he had “a constitutional right to possess firearms for self defence” derived from the Constitution of Britain.[6] He pointed to the preamble of the Constitution Act, 1867, Canada’s founding constitutional document, which prescribes “a Constitution similar in Principle to that of the United Kingdom.” This phrase alludes to a variety of constitutional principles, such as parliamentary democracy. In Montague’s view it also imported the English Bill of Rights of 1689, including article 7 which says: “The subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” Montague further argued that in 1982, this historical right was shielded from any ordinary legislation by section 26 of the Charter, which reads: “The guarantee in this Charter of certain rights and freedoms shall not be construed as denying the existence of any other rights or freedoms that exist in Canada.” The Ontario Court of Appeal rejected this line of reasoning on two grounds. First of all, the wording of article 7 clearly does not permit an unconstrained liberty to bear arms. Rather, it provides that the freedom to bear arms must conform to what is “allowed by law.” This means that Parliament always had the ability to pass laws that restricted the right to bear arms.[7] Secondly, it really doesn’t matter what article 7 or any other part of the 1689 Bill of Rights says because it “has neither directly nor indirectly been incorporated into Canada’s constitution.”[8] The Supreme Court of Canada has already ruled that the preamble to the Constitution Act, 1867 cannot be read as the incorporation of specific articles of the United Kingdom’s constitution into Canada.[9]

Guns and Security of the Person

Montague also argued that the right to self defence is included in the guarantee of “life, liberty and security of the person” found in section 7 of the Charter. He said that the sections of the Criminal Code that set stringent requirements on storing and transporting firearms and ammunition effectively deprive him of the right to defend himself with a live weapon.[10] The court did not deny that section 7 provides Canadians with a right of self defence, but it could not accept Montague’s view that self defence requires the freedom to carry a dangerous weapon. The Court of Appeal said even if it is accepted that section 7 protects a right to possess firearms, like all other rights and freedoms, it is not absolute. Section 1 of the Charter allows for reasonable limits of rights prescribed by law. The court also stressed that the Criminal Code provisions for firearms do not prohibit ownership and use of firearms. Rather, the Code merely regulates the legal possession of firearms.[11]

The Law and Politics of Guns

Gun ownership has generated plenty of debate in Canada since the implementation of the long gun registry. Opposing sides argue its merits and shortcomings, including its much publicized cost overrun. At trial, Montague testified that the gun registry in ineffective and inefficient. But as the court noted, this is a political question, not a legal question.[12] The court cannot be concerned with the wisdom of the gun registry. The court is only concerned with the question of whether there is exists a constitutional right to bear arms that conflicts with the legislation passed by Parliament. The court could find no such right.

[1]R. v. Montague, 2010 ONCA 141 at paras. 2-6. [2]Firearms Act, S.C. 1995, c. 39, ss. 86, 88, 91, 92, 95, 100, 102, 108. [3]R. v. Montague, 2001 CanLII 51171 (ON S.C.). [4] Supra note 1 at para. 21. [5]R. v. Hasselwander, 1993 CanLII 90 (S.C.C.), [1993] 2 S.C.R. 398 at 414. [6] Ibid. at para. 6. [7] Supra note 1 at para. 14. [8] Ibid. at para. 15. [9] Ibid. [10] Supra note 3 at paras. 23-24. [11] Supra note 1 at para. 20. [12] Ibid. at para. 10.

Government Appeals Latest Court Order on Omar Khadr’s Constitutional Rights

On July 12, 2010, exactly seven days after the Federal Court gave the government one week to come up with an effective remedy for its violation of Omar Khadr’s rights,[1] the government has announced it will appeal.[2] The decision of Federal Court Judge Russel Zinn is the fourth time that a court has ruled that Khadr’s Charter rights were violated when officials of the Canadian government questioned him in Guantanamo Bay, Cuba, even though they knew he had been subjected to extensive sleep deprivation, and despite him having no access to a lawyer or parent.

The major issue in the appeal is which branch of government – the judiciary or the executive – has the final say on how the rights violation can be remedied, and whether a remedy is adequate. As the government announcement says, “This case raises important issues concerning the Crown prerogative over foreign affairs.”[3] Prior to the Khadr cases, there had been few major disputes in Canada over the constitutional boundary between the courts’ authority to order Charter remedies and the government’s Crown prerogative over foreign relations.

In January 2010, the Supreme Court of Canada unanimously ruled that it was up to the government to choose how to remedy the breach of Khadr’s rights. This part of the ruling reversed the decisions of the Federal Court and the Federal Court of Appeal, which had ordered the government to ask the United States government for Khadr’s repatriation to Canada. The Supreme Court deferred to the Crown prerogative in matters of foreign affairs: it would be up to the government to determine how to remedy the breach. The government responded to the Supreme Court ruling by sending a diplomatic note to American authorities asking that evidence gathered by Canadian officials be excluded from his trial. Although the United States refused this request, the Canadian government was satisfied that it had acted in a manner sufficient to remedy its Charter breach.

Khadr’s Canadian lawyers once again took the matter to the Federal Court. They argued that the government acted in bad faith in pursuing its preferred remedy without consulting Khadr’s lawyers or considering other options. Justice Zinn agreed that the government had denied Khadr procedural fairness and natural justice in the way it responded to the Supreme Court ruling. His ruling set out a series of deadlines for the government and Khadr’s lawyers to propose and discuss options for addressing the breach of Khadr’s rights.[4] He suggested that there was only one obvious way to remedy the Charter breach – a request for Khadr’s repatriation to Canada, the response Khadr had requested and the government had denied. He did, however, leave open the possibility for the government to come up with other ways of remedying the breach. The government’s announcement of an appeal came on the same day that Justice Zinn had set for the government to advise Khadr of all possible remedies that might address its breach of Khadr’s rights – the first deadline set out in his judgment. A media report suggested Khadr’s lawyers might seek a contempt-of-court ruling against the government for missing its deadline for advising Khadr on potential remedies.[5]

[1] Khadr v. Canada, 2010 FC 715. [2] News release, “Statement by Justice Minister Rob Nicholson regarding the Government of Canada’s appeal of the Federal court’s Khadr decision” Department of Justice Canada (12 July 2010). [3] Ibid. [4] Supra note 1 at 35-37. [5] Juliet O’Neil, “Khadr’s lawyer likely to seek contempt ruling against government” Canada.com (12 July 2010).