There is no right to die in Canada.
Parliament and the Supreme Court have been crystal clear on that question. There are carve-outs in the Criminal Code that allow for medical assistance in dying, or MAID, in explicitly defined circumstances. But it otherwise remains a criminal offence to assist in someone’s suicide, even with that person’s explicit consent. And, of course, it remains a criminal offence – homicide, to be precise – to kill someone without their consent.
That reality must be the starting point for a much needed rebalancing of Canada’s legal and regulatory framework, a decade after the Supreme Court overturned the blanket prohibition on physician-assisted death in the landmark case of Carter versus Canada.
Hollis Johnson and Lee Carter, the two lead plaintiffs in the landmark Carter v. Canada case, in October, 2014. In its 2015 ruling, the Supreme Court overturned the blanket prohibition on physician-assisted death.Fred Chartrand/The Canadian Press
In that decision, the court found that a prohibition without exception unjustifiably violated the Charter right to life, liberty and security of the person. The court ruled that a competent adult has a right to a physician-assisted death if they clearly consent, and if they have a “grievous and irremediable medical condition” that results in enduring suffering that is intolerable to that individual.
The court also acknowledged that the stated purpose of the blanket prohibition on assisted suicide – preventing those suffering temporary despair from ending their lives – was a legitimate objective. The constitutional violation arose because that prohibition also ended up capturing people who were not merely suffering “a moment of weakness.”
Over the last decade, the critical point has been blurred. The principle should be clear and clearly stated: The law should not enable people to end their lives when they could otherwise go on to live happily and fruitfully. That should be the fulcrum on which any changes to Canada’s medical assistance in dying laws are balanced.
Reinstitute the 10-day reflection period
Under the original assisted dying law, there was a mandatory 10-day waiting period for Track 1 requests, in which natural death is reasonably foreseeable. That delay was meant to ensure there was a period of reflection on an irreversible decision.
But the federal government scrapped that provision in 2021, allowing assisted-death procedures to proceed without any set delay. (There remains a 90-day window for assessing requests under Track 2, where natural death is not reasonably foreseeable.)
There are legitimate reasons for not having a waiting period: It could mean 10 days of grievous pain, even if dulled by drugs. Some patients could lose the capacity to consent, denying them the planned death they had earlier requested.
But balanced against those concerns is an even greater one: patients who might have changed their mind if they had had more time to reflect. There is some hint of that peril in the official statistics published annually by Health Canada.
In the first annual report, covering November, 2018, through to the end of 2019, there were 5,389 assisted death procedures and 263 withdrawn requests. In the most recent date, for 2024, there were 16,499 assisted death procedures and 689 withdrawn requests.
Broadly, withdrawn requests were less common in 2024, after the 10-day reflection period was scrapped, than in 2018-19, when it was still in place. If withdrawn requests had been as frequent in 2024 as they were in that earlier period, about 100 Canadians would have had second thoughts and not gone through with an assisted death.
Of course, there is no way to know for certain how many of those people would have voluntarily withdrawn their request for assisted death. But even if the answer is just one, that is a tragedy: a life that need not have ended so soon.
Provinces should limit MAID to their own residents
Quebec is more permissive than the rest of the country when it comes to MAID, but there is one way that it is much more restrictive: only those with a valid provincial health insurance card can make an assisted-death request. And that generally means that someone needs to have been a Quebec resident for at least three months.
That is a policy that the other provinces, and territories, should emulate, for two reasons. First, it would be a way of ensuring that health-policy decisions by the province and territories have sticking power. And it would also limit the possibility of those wanting a MAID procedure seeking out a province with the most permissive rules – venue shopping, to put it bluntly.
Close the loophole on second opinions
Under current rules, Canadians who want a medically assisted death must be approved by two practitioners. That is meant as a safeguard. But that safeguard is rendered essentially meaningless if, when one assessor answers no, patients can simply continue seeking additional opinions until arriving at a second yes.
Any change will need to be approached with great care. It would be too draconian to eliminate any possibility of an additional opinion. Requiring MAID evaluation and procedures to take place in the province of residence is a start.
Beyond that, a version of existing capacity and consent boards at hospitals could be set up as a type of appeals board. (Although there would be issues of legal liability that would have to be thought through.) Alternatively, additional assessors could be assigned from a standing list, rather than selected by the patient.
Withdraw the expansion of MAID for reasons of mental illness
For the moment, the federal government has merely suspended the expansion of MAID to those suffering solely from mental illness until March, 2027, putatively because the provinces and territories needed more time to prepare.
The stated reason skated around the real problem with the expansion: It is extraordinarily difficult to distinguish between a person whose mental illness, and suffering, is truly irremediable and a person who, with the right treatment, could recover or at least see their suffering reduced greatly.
One noteworthy study found that trained and experienced psychiatrists correctly made that diagnosis just 47 per cent of the time – less than what would be expected from a random person flipping a coin.
Until that uncertainty can be resolved – not through advocacy, but through clinical evidence – there is no way to be certain that mentally ill Canadians seeking a medically assisted death could not have recovered. The legal and medical systems should be searching for ways to help those Canadians to live more fulfilling lives, not for ways to kill them.
In February, 2024, senators Pamela Wallin, Stan Kutcher and Marie-Francoise Megie called on the federal government to allow the expansion of MAID eligibility for people suffering solely from a mental illness. For the moment, the government has suspended that expansion until March, 2027.PATRICK DOYLE/The Canadian Press
Bolster palliative care
Similarly, funding for palliative care must be at adequate levels. There are numerous anecdotes, including in an official report by the Ontario coroner’s office, of cases in which lack of access to palliative care appears to have influenced requests for assisted death.
Nearly half, 48.4 per cent, of those who received a medically assisted death under Track 1 cited the “perceived burden on family, friends or caregivers” as one of their sources of suffering. For Track 2 deaths, 50.3 per cent of patients said that being a burden was one of their sources of suffering.
That said, the same report indicates that 95 per cent of those receiving a medically assisted death either received palliative care (74.1 per cent) or did not require such care (20.9 per cent).
However, that still meant that 410 people required palliative care and did not receive it, with an equal number of people for whom that may have been the case. All told, more than 800 Canadians could have opted for a quick death because the health care system would not pay for the care for them to live in comfort. Again, even one instance of such a grotesque conundrum is an unacceptable tragedy. The goal should be simple: No Canadian should choose death because we refuse to pay for their care.
Greater transparency
There is a substantial existing infrastructure for collecting and reporting data about MAID, including annual reports from Health Canada.
But much of that reporting lags badly. The Health Canada report issued in November covered only up to the end of 2024, for instance. Those public reports should be made more frequently, ideally quarterly, or at least with less than an 11-month delay.
There also needs to be much more visibility into instances in which the restrictions on medically assisted death may have been breached. The Office of the Chief Coroner is a (partial) role model for the rest of the country, with the office producing detailed reports on concerning cases. It, along with its peers in other provinces, should ensure that such reports are readily accessible to the public.
The Ontario coroner’s office says that since 2016, it has referred 16 cases to either the College of Physicians and Surgeons of Ontario or the College of Nurses of Ontario. (It did not specify the split.)
What were the specifics of those cases, and what was the outcome? The public should be given that information, once the colleges have made their determinations, within the bounds of privacy law.
Enforce the Criminal Code
This might seem a unnecessary recommendation: Why would the federal government not enforce the Criminal Code?
Yet, that is exactly what is happening today. Quebec has authorized advance requests for medically assisted death, straying outside of the carve-outs in the Criminal Code. In response, the Liberal government has studiously averted its gaze.
This is a problem on a number of fronts, not least of which is that a province should not be able to ignore the parts of the Criminal Code that it feels are overly binding. The additional problem introduced by Ottawa’s indifference is that it sends a message that the restrictions surrounding assisted death are not real limits that will be subject to punishment if transgressed. That message, however intentional, cannot be allowed to stand.
The Liberal government has a simple choice: If it believes that advance requests should be legal, then it should propose, debate and defend an amendment to the Criminal Code. Otherwise, Ottawa needs to tell Quebec that it is exposing provincial practitioners to possible prosecution.
And that is the final part of a needed rebalancing for medically assisted death. The federal government should say clearly what the law says, and what courts have affirmed: killing another human being remains a crime – a grievous crime – except for the narrow carve-outs created for medically assisted death.
If MAID providers clearly and willfully range outside those carve-outs, then they cannot expect to be exempt from the legal consequences of their actions: charges of homicide or of aiding suicide under the Criminal Code.