McLellan Herbert, Barristers & Solicitors
McLellan Herbert, Barristers & Solicitors
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Assisted Dying

The House of Commons tabled Bill C-14 on April 14, 2016 which amends the Criminal Code to provide an exemption for assisted suicide. The impetus for the introduction of this Bill, was the Supreme Court of Canada’s decision in Carter v. Canada (Attorney General), 2015 SCC 5 which found the criminal prohibition of physician assisted dying invalid provided the person affected clearly consents to the termination of life and has a “grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual”. The government was given 1 year to implement new legislation. An extension to June of 2016, however, was granted.

C-14 provides that a medical practitioner, nurse practitioner or someone aiding the medical practitioner or nurse practitioner are not guilty of an indictable offence pursuant to s.14 of the Criminal Code provided certain criteria are met.

The individual making the request for medical assistance in dying must meet all of the following criteria:

  1. They are eligible for health services funded by a government in Canada;
  2. They are at least 18 years of age and capable of making decisions with respect to their health;
  3. They have a grievous and irremediable medical condition;
  4. They have made a voluntary request for medical assistance in dying that was not made as result of external pressure; AND
  5. They give informed consent to receive medical assistance in dying.

A person with has a “grievous and irremediable medical condition” if:

  1. They have a serious and incurable illness, disease or disability;
  2. Are in an advanced state of irreversible decline in capability;
  3. That person’s illness, disease or disability causes them physical or psychological suffering that is intolerable to them and cannot be relieved under conditions that person considers acceptable; AND
  4. Their natural death has become reasonably foreseeable, taking into account all of their medical circumstances (a prognosis of remaining time need not have been made).

The request must be

  • in writing,
  • witnessed by two independent witnesses (cannot be anyone who will benefit from the person’s death, an owner of a health care facility at which the person is being treated, someone who provides health care services or provides personal care);
  • supported by another independent medical practitioner or nurse practitioner;
  • 15 clear days from when the request was made and the day the medical assistance in dying is provided (or a shorter period if both medical practitioners/nurse practitioners considers appropriate);
  • And cannot be carried out unless the person is given an opportunity to withdraw their request and ensure the person gives express consent to receive the medical assistance in dying.

Quebec is the only province that has enacted provincial legislation regarding assisted dying. In BC, we have a temporary process to apply to Court for an exemption to the Criminal Code. Recently a person suffering from advanced MS was granted relief by the BCSC (see the decision of Re: A.A. 2016 BCSC 570) and the medical practitioners were exempted from the application of the Criminal Code in providing that assistance.

There is much debate that the federal government has not gone far enough (not allowing persons with mental illness or persons under the age of 18 to take advantage of this law) or has gone too far or that the legislation is not clear enough (what is meant by the person’s death being “reasonably foreseeable” or that the disease must be the cause of the foreseeable death). The issue of an advanced consent to medically assisted death is not dealt with under the proposed federal law.

This is a very polarizing topic. The federal government says they will continue to study and investigate this issue and we await the regulations and our Courts’ interpretation of the legislation to provide some clarity.