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Trudo Lemmens, Scholl Chair in Health Law and Policy at the University of Toronto

Constitutional challenge to MAiD regime likely as Parliament endorses change

Friday, March 19, 2021 @ 3:10 PM | By Ian Burns

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One battle is done but the larger conflict over medical assistance in dying (MAiD) in Canada looks far from over, with legal observers saying recently enacted changes to the regime are discriminatory against people with disabilities and an advocacy group pledging to take the government to court.

Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), became law March 17 and expands the eligibility for MAiD far beyond what was originally envisioned when parliamentarians brought in sweeping changes to the Criminal Code in 2016 to respond to the Supreme Court’s seminal decision in Carter v. Canada (AG) 2015 SCC 5. Initially, eligibility requirements for MAiD included the patient being at least 18, mentally competent, able to give independent and informed consent and suffering from a “grievous and irremediable medical condition” which was intolerable and where natural death is “reasonably foreseeable.”

But Quebec Superior Court Justice Christine Baudouin ruled in Truchon c. Procurer general du Canada 2019 QCCS 3792 that the “reasonably foreseeable” requirement was unconstitutional. The Liberal government did not appeal the decision and introduced a bill which included a “two-track approach” to procedural safeguards, based on whether a person’s natural death is reasonably foreseeable. Initially, it excluded people whose sole underlying condition was mental illness, which set up a clash with the Senate when the red chamber added a “sunset period” of 18 months for that exclusion, during which an expert panel would be set up to look at safeguards and protocols for people with mental health issues. The sunset period was extended to 24 months in the final legislation, and a joint review committee of the bill by MPs and senators will soon begin work on a series of unresolved issues, such as whether MAiD should be provided for mature minors.

Dying with Dignity Canada said it applauded passage of the bill as a “triumph of compassion and choice that this change brings Canadians.”

“We are overwhelmed with relief and gratitude on behalf of suffering Canadians who were denied access under the previous medical assistance in dying legislation,” the group said. “These Canadians can now choose to exercise their constitutionally protected right to a peaceful death.”

In contrast, the Council of Canadians with Disabilities (CCD) said the regime which is authorized by Bill C-7 “will put vulnerable people with disabilities in harm’s way by making it easier to access medical aid in dying” and “we are prepared to challenge Bill C-7 in court, both in Canada and at the United Nations.” The UN has raised concerns that access to medical assistance in dying for people with non-terminal conditions tends to be based on “ableist” assumptions about quality of life for disabled persons.

 Trudo Lemmens, the Scholl Chair in Health Law and Policy at the University of Toronto

Trudo Lemmens, the Scholl Chair in Health Law and Policy at the University of Toronto

“While many people with disabilities cannot access the disability-related supports that they need to live dignified lives in the community, they will be able to get MAiD,” the CCD said in a release. “The bill creates a separate track, whereby people with disabilities can access MAiD, even if they are not at end of life. Even people experiencing a mental health crisis will have access to MAiD. We are extremely concerned that people with disabilities experiencing a temporary crisis will accept MAiD and die needlessly.”

Trudo Lemmens, the Scholl Chair in Health Law and Policy at the University of Toronto, said he was “amazed by the travesty of the democratic process” by which the unelected Senate added the mental health provision to the bill and the fact it was adopted without substantial debate in the House of Commons. He noted the previous legislation contained explicit language which required parliamentarians to study the issue of how people with mental illness could access medically assisted death.

“This not how law should be made, and it is a betrayal of the commitment in the law which was there,” he said. “I am hugely surprised that people who say there should be circumstances under which MAiD is available to those with certain mental health conditions could defend this process from a political perspective.”

And Lemmens said he felt the bill did single out people with disabilities.

“If people without a disability go to their physician and say they’re fed up with their life, suicide prevention measures will kick in and we will do everything as a society to convince that person life is worth living,” he said. “But now we have this category of people who will go to a physician and be told we understand that you are suffering and it must be intolerable, and if you insist we agree as a medical professional and as a state your life is no longer worth living. This is discriminatory and profoundly troubling, because denies people the protections against prematurely ending their life that others would receive.”

 Isabel Grant, a criminal law professor at the University of British Columbia

Isabel Grant, criminal law professor at the University of British Columbia

Isabel Grant, a criminal law professor at the University of British Columbia, said Bill C-7 was problematic from the start and “adding mental illness makes it more suspect constitutionally.”

“I think in adding mental illness the Senate was looking at a really formalistic understanding of equality, which is a notion that you just have to treat everyone the same,” said Grant, who also serves as chair of the strategic litigation committee for Inclusion Canada, a national advocacy federation for people with intellectual disabilities and their families. “That is not how the Supreme Court has understood substantive equality under the Charter, which is that you have to look at people in the social locations in which they find themselves.”

Grant said she has taught criminal law for over 30 years and has never seen the government amend the Criminal Code so quickly after one trial decision in one province.

“That just doesn’t happen,” she said. “I think it was very much a calculated decision on the part of the Department of Justice, because they had the result the minister wanted in the trial decision and they didn’t want to risk it being overturned on appeal.”

But Western University professor Jacob Shelley said the requirement that death needed to be imminent precluded people from being able to exercise autonomy over their lives.

 Jacob Shelley, Western University professor

Jacob Shelley, Western University professor

“There are concerns which have been raised and we definitely shouldn’t be rejecting them out of hand but I think we should pay attention to what this actually allows for, which is to give people access to what for them might be a reasonable death and to find comfort in the knowledge that they don’t have to be at the point where death is imminent to make that decision,” he said.

Shelley said the accessibility to MAiD is sometimes perceived to be much easier than what it actually is and there are a number of safeguards in place, such as an assessment period of at least 90 days to determine whether the person meets the criteria for medically assisted death.

“There are still protocols that need to be followed and a procedure that must be adhered to. It is not a situation where anybody who wants MAiD can get it,” he said. “I understand why some communities may have trouble trusting the medical system and that is something we need to address, but the system is not without protections. We can discuss whether they are adequate or not, but I don’t think this is about able-bodied individuals telling disabled communities that we want you to end your lives — this is about constitutional rights.”

Lemmens said the safeguards were “far from ironclad” and the time it takes to access support programs often exceed 90 days. And he said Canada is the only country in the world that does not require all other reasonable options to be exhausted before a medically assisted death is administered.

“In the Canadian context this means we will now say to physicians and the medical system that patients now have access to the ending of their life as a therapy, even if physicians know the standard of care would require them to offer other options first,” he said. “It is not just that the patient can say they don’t want treatment, they can insist that a certain procedure is delivered which ends their life. I think it is astonishing that the Canadian Medical Association and other organizations are not loudly protesting this.”

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