Canadian Senators state that parts of euthanasia Bill C-7 are unconstitutional

By Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition (EPC)

In an article published by the CP Press on November 29, Joan Bryden interviews several Canadian Senators who believe that sections of Bill C-7, the bill to expand Medical Assistance in Dying (MAiD) euthanasia in Canada, are unconstitutional. 

Bryden explains that in 2016, the Senate voted in Bill C-14 to remove the requirement that a person’s natural death must be reasonably foreseeable to qualify for euthanasia, because the Senate believed that this requirement was unconstitutional.

“The government rejected the amendment and senators ultimately backed down,” Bryden wrote. (See “Canadian Senate passes Bill C-14 in time for the summer break

However, in September 2019, in the Truchon decision, Québec Justice Baudouin, struck down the requirement that a person’s natural death be reasonably foreseeable in Canada’s euthanasia law, and the government did not appeal the decision.

The court gave the federal government six months to amend the law based on the court decision. (Justice Baudouin subsequently gave the federal government until December 18 to amend the law.)

On February 24, 2020, the federal government introduced Bill C-7 in response. Due to the COVID-19 crisis and then the prorogation of parliament, Bill C-7 was re-introduced on October 5, 2020.

However, Bill C-7 goes far beyond Truchon.

In her article, Bryden interviews Senators who tell her that parts of Bill C-7 are also unconstitutional.  Not because they fail to protect vulnerable patients but because these Senators believe parts of the proposed law impinge on the “right” to “medically-assisted death.” Some senators, she writes,

[A]re convinced the bill introduced to bring the law into compliance with that ruling is also unconstitutional. And they’re pondering how far they should go to protect the rights of Canadians seeking access to medically assisted death.

“If it’s a very clear violation of a constitutional right, I think we have the right, the moral obligation even, to stick to our position and to insist (on amendment),” says Sen. Pierre Dalphond, a former Quebec Appeal Court judge who sits with the Progressive Senate Group. 

Dalphond is highly skeptical that the government’s latest assisted-dying bill, C-7, is constitutional. He’s awaiting further explanations from the government before making a final decision.

Senator Claude Carignan believes both that excluding assisted suicide on the basis of mental illness alone and the two-track approach (no waiting period for people who are dying, a 90-day waiting period for those who are not dying) are unconstitutional. Bryden reports Carignan stating

Bill C-7 violates the guarantee of equality rights in the Charter of Rights and Freedoms by specifying that people suffering solely from mental illnesses will not be allowed access to an assisted death. 

He thinks the proposed two-track approach to eligibility–one set of rules for people who are near death and more restrictive rules for those who aren’t–is similarly problematic. 

“I think the government has created another bill that will have to come back in two or three years after a court challenge,” Carignan says.

I agree with Senator Carignan that a future  court decision will strike down the two-track approach to eligibility, but I disagree with the government which claims that Section (2.1) of Bill C-7 excludes euthanasia for mental illness alone.

Bill C-7 needs to define the phrase “natural death is reasonably foreseeable,” and it needs to define the terms psychological suffering and mental illness. Without defining the parameters of the law, (1) the courts will rule that the law will be unequally applied, and (2) the “right” to medically assisted suicide will be expanded beyond the alleged limited scope of the bill.

EPC is convinced that if the government defines psychological suffering to exclude euthanasia for mental illness alone, that would make the exclusion constitutional and effective.

Editor’s note. This appeared on Mr. Schadenberg’s blog and is reposted with permission.