Canada's MAID laws on 'a collision course' as Parliament awaits legal challenges

The top court gave Parliament a year to comply with its decision. Downie, a law professor at Dalhousie University who had spent nearly three decades studying assisted dying laws, mapped out her next moves.

“But I have never gotten to the ‘what I’m going to do next’ because of what happened,” she said.

The Liberal government legalized medical assistance in dying, or MAID, on June 17, 2016.

It limited eligibility to those whose deaths were “reasonably foreseeable.” Advocates for autonomous choice, like Downie, felt the restriction was not in keeping with the court’s intent in the Carter decision. Critics warned the limit was essential to protect vulnerable people.

The last 10 years have seen an evolving debate over who should be eligible for MAID and under what circumstances, and who should decide on those guardrails.

In 2021, after a ruling in Quebec Superior Court, Ottawa expanded eligibility to include people suffering from a grievous and irremediable medical condition whose deaths are not reasonably foreseeable — what’s now known as track 2 MAID. 

It excluded people with mental illness — a restriction that’s set to end next March, unless the federal government delays it a third time.

On the whole, polls suggest most Canadians agree people should be able to choose MAID.

A recent poll by Nanos research found that 89 per cent of respondents support MAID in cases of terminal illness, and 84 per cent support it for people who are suffering intolerably but are not near the end of their lives.

But the public debate is no less polarized or emotional than it was before legalization.

“Instead of being in a place where we’re talking about how things can be improved, it’s just really, really ugly. And that’s what I didn’t expect,” Downie said.

That divide was clear in witness testimony this spring before a parliamentary committee tasked with deciding whether Canada is ready to extend MAID eligibility to people whose sole underlying condition is a mental illness. 

Some witnesses characterized MAID as “legalized serial killing,” or argued it amounts to a state-sponsored program of discarding vulnerable people. Others, like Downie, said extending MAID to people with mental illness is legally required.

It’s also clear in the opposing Charter challenges underway in Canadian courts.

Disability advocacy group Inclusion Canada argues that only people with disabilities are eligible for track 2 MAID. It’s leading a challenge in Ontario court arguing the law is discriminatory. 

The group cites a report from the United Nations Committee on the Rights of Persons with Disabilities last year that called on Canada to repeal track 2 MAID and focus on providing disability supports. 

Health Minister Marjorie Michel said Monday the government has no plans to change the existing law.

Kerri Froc, a law professor at the University of New Brunswick who studies constitutional law, said there’s “a serious case to be made” that the current law “violates Section 7 and 15” of the Charter of Rights “with respect to people with disabilities.”

Section 7 guarantees the right to “life, liberty, and security of the person,” while Section 15 protects against government discrimination based on various factors, including disability.

Froc said she would want the option to choose MAID for herself, if needed, but not “on the backs of people with disabilities.”

MAID advocacy group Dying With Dignity Canada is arguing in another case that excluding people with mental illness as a sole underlying condition violates their Charter rights.

“I think we’re on a collision course,” Froc said.

The polarization leaves many clinicians in what Dr. Madeline Li calls the “muddy middle.” 

A decade ago, she and other physicians found themselves navigating how to provide a procedure none of them had trained for in medical school.

“The very brave clinicians that stepped up to do this work initially had to go other countries to learn how to do it,” said Li, a professor of psychiatry at the University of Toronto and a MAID assessor and provider.

She helped develop policies and procedures at the hospital where she worked, drawing on her experience as a cancer psychiatrist.

“It was this complex mix of medicine and ethics and law. And I think in the beginning, doctors were very focused on just how not to go to jail,” she said.

Li said she believes she’s among a majority of health-care providers who support MAID but are concerned about the focus on patient autonomy.

“I would say what is needed in the system is the concept of shared decision-making,” Li said.

“Believe it or not, that’s actually a radical thing to propose in MAID in Canada.”

Li said that would mean doctors could steer patients away from MAID if they believe it’s not in their best interest.

Froc suggested Canada could look to the Netherlands, where patients can be denied access to assisted dying if they haven’t tried an available treatment option. In Canada, patients decide if an available treatment is acceptable to them.

Critics of the system point to the exponential growth in MAID cases over the last decade as evidence that something is going wrong.

Health Canada’s latest annual data shows that 76,475 people received assistance in dying between 2016 and 2024.

In 2024, more than 95 per cent of those who received MAID had a terminal illness, most often cancer.

Dr. Alexandra McPherson, a psychiatrist and MAID provider in Edmonton, said it’s her job to ensure the safeguards are adhered to and, more importantly, that patients are seen and heard.

“The core issue is, how do we let people make an autonomous choice in the face of intolerable, enduring suffering?” she said. 

McPherson is vice-president of the Canadian Association of MAID Assessors and Providers, which developed a national curriculum for clinicians. That training is not widely available in medical schools across the country, something McPherson said must change.

She said polarization and disinformation get in the way of constructive discussions.

“From a political point of view, I think it’s a hot potato because I think the governments so far have always waited for the courts to make decisions and then reacted,” McPherson said.

The Carter ruling came 22 years after a split decision in the Supreme Court in a similar Charter challenge. The woman at the centre of that case, Sue Rodriguez, had been diagnosed with amyotrophic lateral sclerosis — Lou Gehrig’s disease — and given a handful of years to live. 

John Major, a retired Supreme Court justice who sided with the majority in the 5-4 ruling, said he had sympathy for Rodriguez on a personal level but worried legalization would create the conditions for abuse.

“My fear was that it was opening the gates to something that might become a problem,” Major said in an interview.

Rodriguez died just months after the decision with the help of an anonymous physician.

One of the judges who wrote a dissenting opinion in 1993 was Beverley McLachlin. By 2015, when Carter came before the court, she was chief justice and the entire bench was on the same page.

Today, some provinces are charting their own paths.

Alberta has passed legislation to restrict MAID to people whose deaths are “likely to happen within 12 months,” among other changes.

Quebec, which has the highest rate of MAID in the world, allows people to sign advance requests so a doctor can carry out their wish to end their life once they lose capacity to consent.

Michel and Justice Minister Sean Fraser won’t say what the government plans to do about the expansion for mental illness in March. They’re waiting on the parliamentary committee to make its recommendations.

The committee’s chair, Liberal MP Marcus Powlowski, said the report will be presented to Parliament on Wednesday, precisely 10 years after legalization.