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

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

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

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

Article: Canadian Senate passes Bill C-14 in time for the summer break (Link).

In September 2019, Québec Justice Baudouin, in Truchon, 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. Since then Justice Baudouin has given the federal government until December 18 to amend the law.

On February 24, the federal government introduced Bill C-7 in response to the Quebec Superior Court decision in response to the Truchon decision, but Bill C-7 goes far beyond Truchon. Due to the COVID-19 crisis and then the prorogation of parliament, Bill C-7 was re-introduced on October 5, 2020.

In her article, Bryden is suggesting, through interviews with Senators, that parts of Bill C-7 are also unconstitutional. She states:

Now, some senators are 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 that the exclusion for 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 unconstitional. Bryden reports Carignan as 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 the two-track approach to eligibility creates an inequality in the law that a future court decision will strike down, but I disagree that Bill C-7 actually restricts euthanasia for mental illness alone.

The government claims that Section (2.1) of Bill C-7 excludes euthanasia for mental illness alone. Since Canada's law permits euthanasia for physical and psychological suffering, therefore Bill C-7 must define psychological suffering as excluding euthanasia for mental illness alone.

In total, 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, the law will be unequally applied and it will be applied beyond the claimed 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.