Question Period Note: MEDICAL ASSISTANCE IN DYING (MAID) – RESPONSE TO QUEBEC COURT

In June 2017, federal and provincial assisted dying legislation were challenged in a Quebec Superior Court by two individuals (Truchon/Gladu) who claimed that the Criminal Code of Canada requirement that an individual’s natural death be reasonably foreseeable and the provincial requirement for a person to be at the end of life were in violation of the Charter of Rights and Freedoms.

On September 11, 2019, the Quebec Superior Court ruled in favour of the plaintiffs and found both the federal and provincial criteria invalid. The effect of the judgement was suspended for 6 months (i.e., until March 11, 2020). The decision applies only in Quebec. If legislative changes are not passed prior to this date, there would be a difference in eligibility for MAID between Quebec and the rest of Canada.

On October 2019, the Government of Canada confirmed that it would not appeal the Quebec Superior Court’s decision. The Prime Minister has publicly indicated that the way forward requires legislative reform and that the Government is committed to making progress within the six-month timeframe set out by the Court.

• How is the Government going to respond to the Quebec Superior Court decision that declared the reasonably foreseeable death criterion as unconstitutional?

• Our Government recognizes that medical assistance in dying is a deeply personal choice. We also understand that Canadians have diverse and evolving views, which need to be considered.

• I am working closely with the Minister of Justice on our response to the Quebec Superior Court decision. Our goals are to make sure that any legislative initiative continues to provide protection for vulnerable people, as well as facilitating access for those who are eligible for assistance in dying.

If pressed on the federal government’s reaction to the Quebec expert panel report on advance requests released on November 29, 2019:

• Quebec has demonstrated leadership in commissioning this report and committing to hold non-partisan consultations on this question.

• The Government will be reviewing the report of the Quebec expert panel on advance requests.

• We recognize that a number of Canadians have indicated their interest in being able to obtain MAID via advance request.

• Canada remains committed to protecting vulnerable individuals while respecting the rights of Canadians to make their own choices.

If pressed on whether the federal government will consider other amendments to allow advance requests for MAID?

• In December 2018, our Government tabled reports reviewing three eligibility issues outside the purview of the current law: advance requests, requests by mature minors, and requests where a mental disorder is the sole underlying medical condition.

• The report on advance requests for MAID highlighted the many complexities associated with this issue.

• These findings will inform the dialogue on MAID among the public and decision-makers.

REASONABLY FORESEEABLE NATURAL DEATH DECLARED INVALID IN QUEBEC
In 2016, Parliament passed amendments to the Criminal Code allowing physicians and nurse practitioners to provide medical assistance in dying to individuals who met specific eligibility criteria. Shortly after the passing of the legislation, a challenge (Lamb) was launched in British Columbia on the constitutionality of the legislation’s criterion that natural death must be reasonably foreseeable (RFND). A number of critics argue that this requirement goes beyond the original Supreme Court decision in Carter v. Canada. A second challenge on the same criterion was launched in Quebec in 2017 by two residents (Truchon/Gladu).

In September 2019, the Lamb challenge was adjourned as the main plaintiff determined the RFND criterion no longer posed a barrier to her eligibility. However, on September 11, 2019, the Quebec Superior Court ruled on the Truchon/Gladu case that the RFND criterion, along with a similar criterion in Quebec’s end-of-life care legislation, was unconstitutional. The effect of the ruling was suspended for 6 months (i.e., until March 11, 2020). Neither the federal government nor the Quebec government appealed the decision.

If the RFND criterion is removed, MAID could be accessible to the following populations, provided they meet all other eligibility criteria in the law (including their condition must be grievous and irremediable):
• Persons with any type of mental disorder as a sole underlying medical condition
• Persons with physical disabilities (e.g., spinal cord injuries)
• Persons with intellectual disabilities (e.g., head injury, neurodevelopment disorders)
• Persons who are chronically ill or in chronic pain (e.g., rheumatoid arthritis, severe dermatological issues)

Response to the Quebec Court’s decision is mixed. Some disability organizations argue that the ruling fuels negative perceptions of the quality of life of persons who are disabled. Other stakeholders applaud the expansion of eligibility to persons who are suffering intolerably, but whose death is not imminent.

POSSIBLE AREAS FOR EXPANSION OF ACCESS TO MAID
Review of the federal legislation, in response to the Quebec Court’s decision, may heighten public
expectations for further expansion of access to MAID, such as allowing advance requests. An advance request is a request for MAID created in advance of a loss of decision-making capacity. If the person loses decision-making capacity, an advance request would set out circumstances under which they would want the request for MAID to be carried through. Advance requests are not possible under the current law, as individuals must provide final consent immediately prior to receiving MAID.

There is strong public support for advance requests, especially for persons who have been assessed and approved for MAID and are in the last weeks of life.

In 2017, the Quebec government signaled openness to considering expansion of its provincial end-of-life care legislation to include advance requests by commissioning an expert panel report on the topic. The report, released November 29, 2019, makes recommendations for how current QC legislation could include advance requests for MAID for individuals who lack capacity to provide consent under certain circumstances. The government also committed to launching a non-partisan public consultation over the next year on the issues examined in the report.

In December 2018, the Government tabled reports on independent reviews conducted by the Council of Canadian Academies on three complex issues on MAID: advance requests, requests by mature minors and requests where a mental disorder is the sole underlying condition. The report on advance requests found that there are many complexities associated with these type of MAID requests.

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