I have written often about the need to expand Canada’s medical assistance in dying (MAiD) legislation; most recently urging readers to support Bill C-7, which would have done just that.
Here’s a quick summary of the bill. It was initially introduced by the federal government in February 2020 in response to a Quebec court decision that found the existing Criminal Code provisions with respect to MAiD unconstitutional because they excluded people whose deaths were not imminent from being able to access medical assistance to die. The decision imposed a deadline by which legislative revisions had to be made. The Bill died when the Prime Minister prorogued Parliament in August and was reintroduced in October, at which point it made its way through the House of Commons process fairly quickly.
A number of Conservative MPs opposed it, including leader Erin O’Toole, who described the Bill as “reckless public policy on the most important debate our Parliament will have.” However, with support from both the Bloq Quebecois and the NDP, the Bill passed and moved on to the Senate.
By November, the deadline for changing the law had passed, twice, and Minister of Justice and Attorney General David Lametti had, twice, sought and received an extension, the most recent of which was December 18th. Out of concern that the Bill might not be passed by the Senate before this deadline, Lametti sought and obtained a third extension, this time to February 26, 2021.
Senators speak up
The Senate is a very different place than it has been in the past. Prime Minister Trudeau’s introduction of independent senators and the creation of the Progressive Senators Group has led to more substantive debates and, at times, the Senate moving to make legislation more progressive than the House of Commons has seen fit to do. That’s the situation facing Bill C-7.
After passing First and Second Reading before the Senate began its winter break on December 17th, C-7 has been sent to the Legal and Constitutional Affairs Committee, which reconvenes on February 2, 2021. The Committee has already heard from a number of witnesses and conducted a pre-study of the bill, but further hearings are expected.
Senate opposition to the original medical assistance in dying legislation in 2016 came largely from those who didn’t believe any form of assisted dying was appropriate, but this time Senate opposition also comes from those who feel Bill C-7 does not go far enough. Opponents on both ends of the spectrum say the Bill is unconstitutional.
Those who think Bill C-7 goes too far do not want to see any expansion of who can qualify for a medically assisted death, including people who are intolerably suffering but are not near death.
Those who think it does not go far enough say that the explicit ban on MAiD for people suffering from mental illness alone and the longer assessment period for people who are not near death violate the Charter of Rights and Freedoms. Senator Pierre Dalphond, who sits with the Progressive Senators Group, says:
“If it’s a very clear violation of a constitutional right, I think we have the right, the moral obligation even, to stick to our position and to insist [on amendment].”
The concern is that, if Bill C-7 does not address this issue, the legislation will be back in front of the government again within a few years because a court has ruled it to be unconstitutional.
One possible way to move past this challenge is for the Senate to amend the Bill to remove the mental illness exclusion but give the government a short period of time (one to two years) to develop a process for doing so that would ensure proper safeguards are put in place.
Back to the House of Commons
It seems inevitable that the Senate will propose significant amendments to Bill C-7. To satisfy the Progressive Senators Group, these could include some kind of sunset clause as described above to deal with the exclusion of people suffering only from mental illnesses and a reduction or elimination of the more stringent eligibility rules proposed for people who are not near death. Those who oppose the expansion of MAiD may seek amendments to lengthen the assessment period for people who are not near death, restore safeguards the Bill seeks to eliminate for those who are near death and prohibit medical professionals from raising the possibility of MAiD until the patient initiates such a discussion.
Whichever amendments the Senators decide on, it looks likely that Bill C-7 will have to come back to the House of Commons for further discussion and review. If that leads to a Bill that moves towards greater access to MAiD, that will be a good thing, but if it moves the Bill backwards from where it is now, medically assisted dying will be denied to people who want it, and the courts will return the legislation to the government yet again.
And this does not even begin to address the issue of advance directives, which would allow consents to MAiD made by people when competent to hold even if they become incompetent later.
“Not only is access to medical assistance in dying a constitutional right, but as a compassionate society, alleviating suffering should be our first priority.”