Federal Justice Minister consulting with legal experts on changes to MAiD

  • January 14, 2020

By Cristin Schmitz for The Lawyer's Daily

As a court-imposed deadline fast approaches, Justice Minister David Lametti is meeting with legal experts and law groups, and surveying the public online, about what they think impending amendments to the medical-assistance in dying (MAiD) law should look like.

On Jan. 13, Ottawa launched an online consultation that closes Jan. 27, and which solicits the public’s views about: eligibility for MAiD; advanced requests for MAiD (not currently allowed); and what safeguards should be implemented.

Lametti also meets this week with legal experts, medical, law and other groups and stakeholders, including disability advocates, at by-invitation round tables (Halifax Jan. 13, Montreal Jan. 14 and Toronto Jan. 15.)

Federal Health Minister Patty Hajdu and Carla Qualtrough, federal minister of Employment, Workforce Development and Disability Inclusion, are also participating at a number of the round-table meetings — some of which will take place later in January in as-yet undisclosed locations across the country, Lametti’s press secretary Rachel Rappaport confirmed.

The government faces a tight court-imposed (and by now near-impossible) deadline to enact and proclaim MAiD amendments by March 11, 2020. The current round of public consultations, if seen as a good faith and necessary step in Ottawa’s quest to develop sound and constitutionally compliant MAiD legislation, could support a future application by the government to the Quebec Superior Court for an extension (the government has not yet disclosed whether it will seek an extension).

By next June, the House of Commons is also expected to launch its own mandatory legislative review of the 2016 MAiD law — which was enacted by the Trudeau government after the Supreme Court of Canada’s declared unconstitutional the Criminal Code’s prohibition of assisted suicide: Carter v. Canada (AG) 2015 SCC 5.

The Commons is expected to come up with recommendations on such hot button, and as-yet-unresolved, issues as whether mature minors and persons suffering solely from mental illness should be eligible for MAiD, and whether persons, such as those with dementia, should be able to make advance directives for an assisted death, before they lose their capacity to consent.

Currently, however, the government says it is consulting to develop its legislative response to a Quebec Superior Court Sept. 11, 2019, decision, which declared invalid the federal Criminal Code’s requirement that, in order for a person who is suffering intolerably to be eligible for MAiD, his or her natural death must be “reasonably foreseeable.”

The federal government opted not to appeal the ruling, no doubt following advice from Lametti, who before he became attorney general last year, voted against the Liberal’s MAiD legislation because he doubted that restricting MAiD to circumstances where death is reasonably foreseeable would survive constitutional challenge in the wake of Carter.

In Truchon v. Canada 2019 QCCS 3792, the Superior Court of Quebec ruled that both the “reasonably foreseeable death” criterion in the Criminal Code and the “end of life” criterion contained in Quebec’s own MAiD law are incompatible with the principles established by the Supreme Court of Canada in Carter.

The Superior Court ruled the federal law violates the Charter’s section 7 guarantee of life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice, and the s. 15 equality rights guarantee. Quebec’s law was struck down for violating s. 15. The judge suspended the declaration of invalidity for six months. 

“What we’re doing with this consultation is trying to assess from Canadians their views on the medical-assistance-in-[dying] regime and some of the finer points, to try to see if there is shared consensus on other issues — outside reasonable foreseeability of death — for example, like advanced requests” for MAiD, Rappaport told The Lawyer’s Daily. “Has Canadian society’s view evolved enough [for the government] to understand whether it would be appropriate to move forward with something like that, within this first legislative step?” she explained.

The Truchon case was brought by a man who lived with cerebral palsy since birth, and by a women who lived with paralysis and severe scoliosis as a result of poliomyelitis. Medical doctors said the pair met all eligibility criteria for MAiD, with the exception of being near the end of life.

The Quebec Superior Court’s ruling striking down of the Criminal Code’s reasonable foreseeability criterion will come into effect on March 11, 2020, unless the court grants an extension. The court’s ruling applies only in Quebec, but the Trudeau government committed to changing the MAiD law for the whole country.

The Canadian Bar Association (CBA) has already responded to an online questionnaire from the Justice minister’s office, and its end-of-life working group is considering making a submission as part of the ongoing consultations, in addition to a written submission it made last October. Whether the group will participate in a round table is yet to be determined, said a CBA spokesperson.

 “The CBA would like to see eligibility for medical assistance in dying align more closely with the Supreme Court of Canada’s decision in Carter, and we support the government’s commitment to lead a collaboration with the provinces to achieve that end,” the CBA said in a statement. “We would be pleased to participate with the government in its work on end-of-life issues.”