Broader Access to Medical Assistance in Dying (“MAiD”) on the horizon

Bill C-7 An Act to amend the Criminal Code (MAiD)

The federal government is drawing closer to amending provisions regarding medical assistance in dying (“MAiD”) to allow access to individuals whose deaths are not reasonably foreseeable, with Bill C-7 completing its First Reading at the Senate as of December 10, 2020. This blog post from September 2019 offers a concise review of the case that prompted our legislators to take action, and this post sets out the current eligibility requirements.

Following a Supreme Court of Canada decision from 2015 that found the prohibition on MAiD to be unconstitutional, Parliament proceeded to amend the Criminal Code to decriminalize it, but mandated that the person’s natural death must be “reasonably foreseeable” for them to be eligible. This means that individuals who lived with intolerable suffering due to grievous and irremediable medical conditions, but who were not dying, could not access MAiD.

In 2019, two plaintiffs who found themselves in that exact situation challenged the law in Quebec. The court agreed with the plaintiffs, finding the “reasonably foreseeable” requirement for a patient’s death was unconstitutional and provided Parliament with six months to change the law.

That decision was released about 16 months ago, yet the law remains unchanged. After an unsuccessful attempt in February 2020, the federal government introduced Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) for the second time in October 2020. On December 10, 2020, Bill C-7 completed its First Reading in the Senate, indicating that the law may not be far off from being changed.

The Bill would amend the Criminal Code to allow individuals whose deaths are not reasonably foreseeable to access MAiD, but they would face new and strengthened safeguards. The Bill also specifically excludes individuals suffering solely from mental illness from being eligible, and permits those who are eligible to receive MAiD to proceed even if they have lost the ability to provide final consent in the interim.

For further inquiries on this topic and advice on planning issues related to medical assistance in dying, please contact Emma Ferguson or one of the other lawyers in our Wills, Estates + Trusts Practice Group.

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