Alberta is the first province to restrict medical aid in dying for patients who are not dying.David Joles/The Associated Press
Derek Ross is executive director and general counsel at Christian Legal Fellowship. Brian Bird is a lecturer at the Peter A. Allard School of Law at the University of British Columbia.
This week, Alberta tabled legislation specifying that ending the life of a person who is not dying, or solely on the basis of a mental illness, is not health care. If passed, medical aid in dying (MAID) in these circumstances will not be permitted in Alberta’s health care system.
Although these aspects of Alberta’s new law will likely be opposed by some, they are both constitutionally sound and ethically justified.
Alberta joins Quebec in restricting psychiatric MAID, which is otherwise scheduled to be permitted across Canada in certain circumstances in March, 2027, pursuant to the federal Criminal Code. But Alberta is the first province to restrict MAID for patients who are not dying.
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This is how MAID was initially envisioned in 2016 when it was first permitted in the Criminal Code as a procedure only for persons whose death was “reasonably foreseeable.” Although Parliament removed that requirement in 2021 for criminal law purposes in response to a Quebec judge’s decision, that federal step does not dictate every province’s health care policy.
More than 76,000 lives have been ended in Canada by MAID since 2016. In 2024 alone, the number of MAID deaths represented about 5 per cent of all deaths in Canada, including many who cited isolation, loneliness or being a perceived burden on others as their reasons for opting for MAID. Some may feel that they have no other choice to escape their socioeconomic distress.
This has sparked concern that medical aid in dying is more accessible than medical aid in living, especially for persons with disabilities. The UN Committee on the Rights of Persons with Disabilities has expressed “extreme concern” with Canada’s approach to MAID. The Canadian Human Rights Commission has warned that MAID “cannot be a default for Canada’s failure to fulfill its human rights obligations” in relation to Canadians with disabilities. Inclusion Canada has started a constitutional challenge, arguing that offering MAID to Canadians with disabilities who are not dying violates their Charter rights.
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Constitutionally speaking, federal legislation only decriminalizes MAID in certain circumstances. The Criminal Code does not automatically add MAID to provincial health care systems, nor could it, as that is a matter of provincial jurisdiction. The essence of Alberta’s legislation is to exclude certain forms of MAID from health care in the province. The fact that the Criminal Code does not prohibit an act does not mean that a province must perform, facilitate or fund it.
While the federal government gets to determine what counts as a crime, each province gets to determine what counts as health care, and they may choose – as Alberta has done – to prioritize life-affirming care for patients.
As for what the Charter might say about Alberta’s proposed legislation, it has yet to be tested in court – but there are several factors that suggest that no violation would materialize because of it.
First, the Supreme Court has never recognized a freestanding Charter right to MAID. Rather, the Court concluded in 2015 that the criminalization of MAID in all circumstances violated the Charter right to “life, liberty, and security of the person.” But this did not mean that any and all limits are unconstitutional. Indeed, in that same ruling, the Court said that cases with people with “psychiatric disorders” were not within the scope of its conclusions. The Court also noted that the criminalization of MAID is a valid state objective where it protects the vulnerable from being induced to commit suicide in moments of weakness.
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Second, there are inherent challenges around MAID for mental illness. Experts have flagged major difficulties in clinically determining when an instance of mental illness has become irremediable. There is also the broader question of how, as a society, we can say that we are committed to suicide prevention and supporting individuals with mental illness while at the same time offering them state-sponsored death.
Third, the notion that MAID can be subjected to durable, error-free safeguards has proven to be illusory. In Ontario alone, reports identified 428 cases between 2018 and 2023 in which MAID may have been provided illegally. This evidence was not available to the Supreme Court in 2015, and we ignore these reports at our own peril.
In our view, the Charter should not be said to require a province to offer MAID within its health care system for mental illness or for patients who are not dying. Given how MAID has unfolded in Canada, it is increasingly difficult to argue that provinces are ever required to offer it as health care.
Alberta is the first province to robustly challenge this idea. We hope it is not the last.