“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.”
Last week, Alberta tabled legislation which specifies that ending the life of a person who is not dying, or solely on the basis of a mental illness, is not health care. Under Bill 18, euthanasia (also known as “medical assistance in dying” or “MAID”) in these circumstances will not be permitted in Alberta’s healthcare system.
With this proposed law, Alberta would join Québec in restricting psychiatric euthanasia, which is otherwise scheduled to be permitted across Canada in certain circumstances in March 2027, pursuant to the federal Criminal Code. But Alberta would be the first province to restrict euthanasia for patients who are not dying since the Criminal Code was amended to allow it, in certain circumstances, in 2021. It also clarifies that euthanasia will not be offered to children (this is currently illegal in any event, but a Parliamentary committee has recommended allowing it for children who demonstrate “decision-making capacity”).
Christian Legal Fellowship (CLF)’s Derek Ross and Professor Brian Bird (Peter A. Allard School of Law) recently co-authored an op ed featured in the Globe and Mail, entitled “Ottawa can decide that MAID is not a crime. Provinces have the right to decide that it is not health care”.
Ross and Bird explain in this article why Bill 18’s provisions on euthanasia are both constitutionally sound and ethically justified.
Decriminalization cannot force provinces to provide MAID
Constitutionally speaking, Ross and Bird explain, “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.”
“The fact that the Criminal Code does not prohibit an act does not mean that a province must perform, facilitate or fund it.”
The article explains, “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.”
While this law has yet to be tested in court, Ross and Bird point to several factors that suggest no Charter violation would materialize because of it. First, the Supreme Court of Canada has not recognized a freestanding Charter right to MAID. Secondly, there are major inherent challenges around MAID for mental illness according to experts. Finally, disturbing evidence around Canada’s experience with MAID to date shows how existing “safeguards” are inadequate. The article concludes:
“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.”
A response to public consultations
Alberta’s new proposed bill follows its public consultation on regulating assisted suicide and protecting the vulnerable, with the goal of gathering information on the impact of assisted suicide laws following the federal legalization of assisted suicide in 2016, and its expansion to those who are not dying in 2021.
As previously reported, CLF was invited to participate in that consultation, and submitted a comprehensive written brief. Alberta’s Bill reflects a number of CLF’s specific recommendations, including better safeguards and supports prioritizing life-affirming care. In keeping with CLF’s recommendations, the Bill includes provisions clarifying that hospitals and palliative care communities will not be forced to offer euthanasia, and that conversations about euthanasia should never be initiated, unsolicited, by a health care professional.
This submission is part of CLF’s longstanding work defending every person’s inherent right to life, and ensuring its protection for persons with disabilities on an equal basis with others. CLF’s life-affirming position is grounded in our deep conviction that every human life, regardless of health status or ability, deserves respect and full legal protection (as set out in Article 10 of the Convention of the Rights of Persons with Disabilities).
CLF remains committed to affirming the equality and dignity of every life, particularly as the federal government considers expanding MAID as outlined above. As CLF stated in its February 2024 open letter, “a premature death should never be promoted as a medical ‘solution’ to all kinds of suffering, and certainly not as a more accessible solution than life-affirming treatment and support. ... we urge the government to prioritize mental health and disability supports that respect everyone’s fundamental right to medical assistance in living.”
LEARN MORE
Read CLF’s brief to the Alberta government
Read CLF’s written submissions to the Committee on the Rights of Persons with Disabilities, reporting that the Canadian government has failed to respond meaningfully to the serious concerns raised by UN experts on shortcomings in Canada’s framework for supporting persons with disabilities
Read more about CLF’s open letter to Parliament
Read the Vulnerable Persons Standard (of which CLF is a supporting organization) submission to the Special Joint Committee on Medical Assistance in Dying
Learn more about CLF’s work protecting Dignity for All