{"id":268418,"date":"2020-06-09T10:32:20","date_gmt":"2020-06-09T14:32:20","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/will-parliament-take-steps-to-clarify-medical-assistance-in-dying-law\/"},"modified":"2025-10-07T23:03:40","modified_gmt":"2025-10-08T03:03:40","slug":"will-parliament-take-steps-to-clarify-medical-assistance-in-dying-law","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2020\/06\/will-parliament-take-steps-to-clarify-medical-assistance-in-dying-law\/","title":{"rendered":"Will Parliament take steps to clarify medical assistance in dying law?"},"content":{"rendered":"

When the federal government introduced Canada\u2019s medical assistance in dying legislation<\/a> back in 2016, there was swift and fierce backlash against one of the eligibility criteria \u2013 a person\u2019s natural death had to have become \u201creasonably foreseeable.\u201d The government was told in no uncertain terms that the criterion was unconstitutional and unclear, but Parliament passed the legislation with the reasonably foreseeable criterion anyway. Unsurprisingly, Charter<\/em> challenges to the legislation and confusion on the ground ensued.<\/p>\n

In a September 2019 decision of the Quebec Superior Court<\/a> in Truchon<\/em>, Justice Christine Baudouin struck down the reasonably foreseeable requirement. She gave the government six months (later extended by four months<\/a> because of the Fall election) to amend the legislation. The government decided not to appeal this decision and, in February 2020, Justice Minister David Lametti introduced Bill C-7<\/a> to amend Canada\u2019s MAiD legislation.<\/p>\n

Like so much else in our lives, COVID-19 put Bill C-7\u2019s on hold. However, as Justice Baudouin\u2019s decision will take effect on July 11, 2020 (barring a further extension<\/a>), Parliament has to turn its attention to Bill C-7 if it doesn\u2019t want the \u201creasonably foreseeable\u201d eligibility criterion for MAiD to disappear, with none of the procedural safeguards in place that the government is proposing. As they study the amendments, parliamentarians should ensure that the following happens:<\/p>\n

Pass the proposed amendment that removes \u201creasonably foreseeable\u201d as an\u00a0eligibility\u00a0criterion for MAiD. <\/strong><\/p>\n

This might seem redundant, since it has already been struck down in Truchon<\/em>. However, the Attorney General of Canada has argued<\/a> that the Truchon<\/em> decision will only apply in Quebec. Case law<\/a>, academic commentary, and even Justice Baudouin<\/a> suggest that he is wrong about this. Still, Parliament should pass the amendment to provide certainty around the law in the rest of Canada, and remove the fear of potential criminal liability for medical and nurse practitioners outside Quebec.<\/p>\n

Clear up the confusion about the meaning of \u201creasonably foreseeable.\u201d <\/em><\/strong><\/p>\n

The proposed amendments actually keep \u201creasonably foreseeable\u201d in the legislation \u2013 but it no longer is a determining factor in whether you can get MAiD or not. Rather, it determines which <\/em>procedural track you must follow to get MAiD.<\/p>\n

The proposed amendments establish a two-track approach for Canadians seeking medical assistance in dying. If someone\u2019s natural death has not yet become reasonably foreseeable, they\u00a0will\u00a0face far more procedural safeguards than if someone\u2019s natural death has become reasonably foreseeable.<\/p>\n

For example, they will face a\u00a090-day waiting period from the time they make their first request until MAiD is provided\u00a0as opposed to no waiting period. They must be assessed by a practitioner with expertise in the condition causing the person\u2019s suffering. They must have been offered consultations with relevant professionals who provide services to relieve their suffering. The medical or nurse practitioner with expertise in the person\u2019s condition and the practitioner providing MAiD must agree that the person seeking MAiD has given serious consideration to the means of relieving the person\u2019s suffering. None of these safeguards applies where a person\u2019s natural death has become reasonably foreseeable.<\/p>\n

What \u201creasonably foreseeable\u201d means is therefore critically important. Bill C-7 does not include a definition of \u201creasonably foreseeable,\u201d and the justice minister has sown some confusion<\/a> around the term. When introducing Bill C-7, the Minister of Justice used the following phrase: \u201cdeath that is expected in the relative near term<\/a>.\u201d The Preamble to C-7 refers to \u201cdying persons.\u201d But when subsequently asked for clarification about the meaning of \u201creasonably foreseeable\u201d in C-7, the Minister of Justice gave the following written response to a journalist:\u00a0\u201cThe definition of reasonable foreseeability of natural death has not changed in the new legislation. Reasonable foreseeability of natural death is a familiar concept for providers after four years of providing the service. By retaining the same language in Bill C-7, practitioners will be using a standard that is already familiar to them as a means to determine which safeguards to apply.\u201d<\/p>\n

Understanding the\u00a0\u201cstandard that is already familiar to\u00a0them [providers]\u201d\u00a0is therefore\u00a0crucial.<\/p>\n

Fortunately, it is possible to offer insight into that\u00a0standard.\u00a0We can look to\u00a0widespread clinical practice, case law\u00a0in Ontario<\/a>,\u00a0College of Physicians and Surgeons\u2019 practice standard\u00a0in Nova Scotia<\/a>, uncontested expert testimony in a BC court case<\/a>, and expert academic commentary<\/a>. We can conclude that \u201creasonably foreseeable\u201d does not mean \u201cdying\u201d or \u201cdeath in the near term\u201d but rather means temporal proximity (sufficiently soon) or<\/em> a predictable path to death.<\/p>\n

This means that the \u201creasonably foreseeable\u201d criterion is met under the following illustrative circumstances:<\/p>\n