Bill C-39: An Act to amend An Act to amend the Criminal Code (medical assistance in dying)
Tabled in the House of Commons, February 15, 2023
Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-39 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the bill. It does not include an exhaustive description of the entire Bill, but rather focuses on those elements relevant for the purposes of a Charter Statement.
Under existing provisions of the Criminal Code enacted by Bill C-7, An Act to amend the Criminal Code (medical assistance in dying),eligibility for medical assistance in dying (MAID) is excluded in circumstances where the sole medical condition identified in support of the request for MAID is a mental illness. That exclusion is subject to a sunset clause and will expire on March 17, 2023. Bill C-39 would extend that exclusion and, if enacted and brought into force prior to March 17, 2023, would preserve the existing state of the law for a period of one year. When the sunset clause expires, individuals whose sole underlying medical condition is a mental illness would no longer be excluded from eligibility for MAID. At that time, they would be subject to the eligibility criteria and safeguards that currently apply where individuals whose natural death is not reasonably foreseeable seek MAID.
With the sunset clause, Bill C-39 creates two different and sequential legal situations, each of which has the potential to engage Charter rights. This Charter Statement describes the potential effects that Bill C-39 may have on Charter rights, first during the extension period and then following the expiry of the new sunset clause in one year.
MAID involves a number of competing interests and societal values. The interests and values that Bill C-39 seeks to balance are the same as those that animate the existing provisions, which include the autonomy of individuals eligible to receive MAID, the protection of vulnerable persons, and the need to address suicide as a public health issue. By extending the prohibition on MAID where mental illness is the sole underlying medical condition for one year, Bill C-39 seeks to ensure the safe provision of MAID in these circumstances. Specifically, it seeks to do so by allowing more time for the distribution and uptake of key resources by the medical and nursing communities – including MAID assessors and providers – to ensure healthcare system readiness. This is in keeping with the final report of the Expert Panel on MAID and Mental Illness, which recommended that specialized training be made available to MAID providers and assessors before allowing MAID where the sole underlying condition is mental illness, The approach taken in Bill C-39 also provides the Government with more time to consider the final report of the Special Joint Parliamentary Committee on MAID.
The Supreme Court of Canada has acknowledged the difficulty of Parliament’s task in legislating in this area, and in balancing the perspectives of those who seek assistance in dying and those who might be at risk in a permissive regime. The Court indicated that Parliament’s choices on how to balance the competing interests would be given a high degree of deference. The difficult question of whether to permit MAID for mental illness is one that can be answered in different ways, in conformity with the Charter. The considerations supporting the Charter consistency of both of the legal situations created by Bill C-39 – prohibiting MAID for mental illness during the extension and permitting it after the sunset clause expires – are set out below.
Extending the prohibition on MAID where mental illness is the sole underlying medical condition
The potential Charter effects of prohibiting MAID where mental illness is the sole underlying medical condition are set out in the Charter Statement for Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) and reproduced below with minor modifications to reflect the context of Bill C-39.
Liberty and security of the person (section 7) and equality (section 15)
Section 7 protects the rights to life, liberty and security of the person and prohibits government interference with these interests unless done in accordance with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.
Section 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of mental or physical disability.
In Carter v. Canada (2015), the Supreme Court of Canada held that a competent adult’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. A criminal prohibition on MAID for a person in this situation – whom the law would permit to request palliative sedation, refuse artificial nutrition and hydration or request the removal of life-sustaining medical equipment – was found to impact liberty and security of the person. This is because the criminal prohibition interfered with the ability to make decisions concerning bodily integrity and leads to serious suffering.
Because Bill C-39 would temporarily prohibit MAID where the sole medical condition identified in support of the request for MAID is a mental illness, it has the potential to engage liberty and security of the person. It also engages section 15 because the exclusion from eligibility for MAID applies to individuals who suffer from a mental illness. The following considerations support the consistency of Bill C-39 with the Charter.
The temporary exclusion from eligibility for MAID is crafted narrowly. In particular, the exclusion applies only where mental illness (i.e., a condition that is primarily within the domain of psychiatry) forms the sole basis of a request for MAID. The exclusion is not based on the assumption that individuals who suffer from mental illness lack decision-making capacity. Further, it does not disqualify such individuals from eligibility for MAID if they otherwise meet all eligibility requirements, for example, if they suffer from another eligible medical condition. Nor is the exclusion based on a failure to appreciate the severity of the suffering that mental illness can produce. Rather, it is based on the risks and complexities that the availability of MAID presents in circumstances where the sole underlying medical condition is a mental illness. For example, screening for decision-making capacity can be particularly difficult in this context because symptoms of the person’s condition, or their life experiences, can subtly influence their ability to understand and appreciate the decision they are to make. In addition, the course of mental illness over time is often less predictable than that of physical illness. Finally, as the practice of MAID in Canada is relatively new, the body of evidence and research on current and potential future practice, including in relation to mental illness, is still developing.
Expanding eligibility to permit MAID for mental illness (when the sunset clause expires)
The potential Charter effects of permitting MAID where the sole underlying medical condition is a mental illness, once the sunset clause expires, are not set out in the Charter Statement for Bill C-7. This is because Bill C-7, as introduced in Parliament, did not include any provision that would have permitted MAID in such circumstances. The expansion of eligibility to permit MAID for mental illness was introduced into former Bill C-7 during the parliamentary process and is not, as such, addressed in the previous Charter Statement. As noted above, Charter Statements describe some of the key considerations that informed the Minister’s review of a government bill for inconsistency with the Charter. This review takes place prior to the bill’s introduction in Parliament.
However, the Charter Statement for Bill C-7 did set out the potential Charter effects of permitting MAID for people who suffered from a grievous and irremediable physical illness, but whose natural death was not reasonably foreseeable. Permitting MAID for individuals on the sole basis of a mental illness potentially engages the same Charter rights as those discussed in relation to Bill C-7. These potential Charter effects are set out below with the necessary modifications to reflect the context of Bill C-39.
Life, liberty and security of the person (section 7) and equality (section 15)
The right to life is engaged where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Expanding eligibility for MAID involves broadening the exceptions to criminal prohibitions on the intentional taking of life. If sufficient safeguards are not included to protect vulnerable persons against abuse or error, it could affect the right to life and security of the person under section 7. Because the broadened exceptions would apply where the person seeking MAID has a serious and incurable mental illness, the bill also potentially engages the section 15 right to equal protection of the law without discrimination on the basis of mental disability.
The following considerations support the consistency of this aspect of the bill with sections 7 and 15 of the Charter. Under the bill, individuals suffering from a grievous and irremediable mental illness would be eligible for MAID on this basis only if they have made a voluntary request that was not the result of external pressure. They would have to give informed consent after having been informed of the alternative means available to relieve their suffering. It would be a criminal offence to provide MAID if the requirements have not all been met – either with respect to the eligibility criteria or procedural safeguards.
The enhanced safeguards that apply where a person whose natural death is not reasonably foreseeable seeks MAID include a longer assessment period of at least 90 days. This longer assessment period helps to ensure that there is adequate time to explore all the relevant aspects of the person’s situation, including whether there are treatments or services that could help reduce the person’s suffering. The enhanced safeguards also stipulate that a medical or nurse practitioner with expertise in the condition that is causing the person’s suffering must be consulted. This helps to ensure that all treatment options have been identified and explored, and that the other eligibility criteria have been satisfied. These two safeguards work together with the provisions clarifying the requirements of informed consent in this context (paragraphs 241.1(3.1)(g) and (h)). Those provisions require that the person be informed of available supports and offered consultation with the professionals who provide those services. They also stipulate that the person and practitioners must agree that reasonable means of alleviating the person’s suffering were discussed and seriously considered.
In addition, the following considerations support the consistency of this aspect of the bill with section 15 of the Charter. Like the current law, the bill would be based on the recognition that every person’s life has equal and inherent value. Eligibility for MAID under the expanded law would not be based on negative stereotypes equating mental illness with loss of dignity of quality of life. Eligibility would recognize that mental illness can cause suffering that is equal to that caused by physical illness, and it would respect the autonomy of all persons with a serious and incurable mental illness to choose MAID as a response to intolerable suffering that cannot be alleviated by means acceptable to them.
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