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<< back to all ArticlesNavigating MAiD: From Crime to Care
Introduction
Medical assistance in dying (“MAiD”) has become one of the most significant and emotionally charged issues in Canada’s modern legal landscape. At its core, MAiD allows eligible individuals to receive medical support to intentially end their lives – a decision that sits at the intersection of autonomy, dignity, and society’s longstanding commitment to protecting life.
Before 2015, the Criminal Code made MAiD entirely illegal under section 241(b).[1] That changed when the courts recognized that a complete ban infringed on Charter rights. Since then, lawmakers at both the federal and provincial levels have been tasked with building a legal framework that respects personal choice while safeguarding vulnerable people.
History of MAiD in Canada
Canada’s modern MAiD framework did not appear overnight – it emerged from decades of legal battles, shifting social values, and evolving Charter interpretations. The change began with the first major challenge to section 241(b) of the Criminal Code, the provision that once made assisted suicide a criminal offence.
Rodriguez: The First Test
In Rodriguez v British Columbia (Attorney General),[2] Sue Rodriquez – who was living with ALS – asked the Supreme Court of Canada (“SCC”) to strike down section 241(b) of the Criminal Code. The Court acknowledged that section 241(b) did infringe on her section 7 rights. But in a narrow and deeply divided decision, the SCC ultimately upheld the law, finding that the prohibition aligned with the principles of fundamental justice. For the time being, MAiD remained entirely illegal.
Carter: A Turning Point
In Carter v Canada (Attorney General),[3] the SCC unanimously overturned its earlier position. This time, the Court emphasized that personal autonomy – especially in medical decision-making – is a core component of section 7 of the Charter.
The result was groundbreaking: Canadians gained a constitutional right to access MAiD, subject to the limits set out by the Court. The decision placed the responsibility on Parliament and the provinces to craft a workable legislative framework.
The 2016 MAiD Act
In response, the federal government introduced the 2016 MAiD Act[4], which formally decriminalized MAiD and reshaped section 241 of the Criminal Code. The legislation did three major things:
Created exemptions from criminal liability:
Doctors, nurse practitioners, and others directly involved in providing MAiD were shielded from prosecution, provided they followed the law
Added section 241.2, outlining eligibility criteria:
To qualify for MAiD, a person had to meet several requirements, including being eligible for publicly funded Canadian healthcare; being at least 18 and capable of making healthcare decisions; having a “grievous and irremediable” medical condition; making a voluntary request; and, giving informed consent after being told about alternative ways to relieve suffering.
Defined “grievous and irremediable” under section 241.2(2):
A person’s condition had to involve: a serious and incurable illness, disease, or disability; an advanced and irreversible decline in capability; intolerable physical or psychological suffering that cannot be relieved under acceptable conditions; and a natural death that is “reasonably foreseeable”. This final requirement – reasonable foreseeability of natural death – became a hotly debated element of the law.
The 2021 MAiD Act
In March 2021, Parliament passed new legislation that expanded access to MAiD. [5] The most notable change was the removal of the “reasonably foreseeable natural death” requirement. This opened MAiD eligibility to individuals whose suffering is intolerable, but who may not be near the end of life.
To address the broader eligibility, the 2021 Act introduced two sets of safeguards. The first for people whose natural death is reasonably foreseeable. Another, more rigorous track, for those whose natural death is not reasonably foreseeable.
The 2021 Act also temporarily excluded mental illness as a sole qualifying condition for MAiD. This exclusion has been extended several times and is now set to expire in March 2027, giving lawmakers more time to develop appropriate safeguards.[6]
Current Legal Framework
Canada’s MAiD laws don’t exist in a vacuum – they operate within a Criminal Code that still treats assisted suicide as a serious offence. Under section 241, it remains illegal to counsel or help someone end their own life. Section 14 goes even further, stating that no one can legally consent to having death inflicted on them.
But MAiD is the exception. Parliament carved out specific exemptions so that medical professionals can provide assisted dying without facing criminal charges. These exemptions apply only to a narrow group:
- Physicians, nurse practitioners, and pharmacists;
- Individuals who assist a physician or nurse practitioner in delivering MAiD; and
- Health-care professionals who provide information about MAiD
Who Can Access MAiD?
Not everyone is eligible. To receive MAiD, a person must meet several baseline criteria, including:
- qualify for government-funded health services in Canada;
- at least 18-years-old;
- capable of making informed health-care decisions; and
- have a “grievous and irremediable” medical condition
The last requirement means that person has a serious and incurable illness, disease, or disability (excluding mental illness), is in an advanced and irreversible decline, and is experiencing suffering – physical or psychological – that they find intolerable and cannot be relieved in a way they consider acceptable.
Two Tracks: Is Death Reasonably Foreseeable?
Once eligibility is established, the next question is whether the person’s natural death is reasonably foreseeable. This matters because each scenario triggers different safeguards.
If death is reasonably foreseeable, additional requirements include:
- a medical practitioner must inform the patient that they have a grievous and irremediable condition prior to the request for MAiD;
- the request for MAiD must be in writing;
- the request can be signed by the patient or by another person in their presence, under their direction;
- the patient must be told they can withdraw their request at any time;
- a second medical practitioner must provide a written confirmation of eligibility;
- the practitioner must ensure the patient can understand and communicate
- immediately before MAiD is provided, the patient must be given a final opportunity to withdraw and must give express consent.
If death is not reasonably foreseeable, the safeguards are even more robust. Patients must receive information about alternative ways to relieve their suffering and must undergo an expert assessment related to their specific illness, disease, or disability.
Who Cannot Access MAiD?
Two groups remain excluded:
- individuals whose sole underlying condition is a mental illness; and
- individuals under 18-years of age.
These exclusions reflect ongoing debates about vulnerability, capacity, and the limits of autonomy in end-of-life decision-making.
[1] Criminal Code, RSC 1985, c C-46 [Criminal Code].
[2] Rodriguez v British Columbia (Attorney General), [1993] 3 S.C.R. 519 (S.C.C.).
[3] Carter v Canada (Attorney General), 2015 SCC 5 (S.C.C.).
[4] Bill C-14: An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), S.C. 2016, c. 3.
[5] Bill C-7: An Act to amend the Criminal Code (medical assistance in dying), S.C. 2021, c. 2.
[6] Bill C-62: An Act to amend the Criminal Code (medical assistance in dying), No. 2, S.C. 2024, c. 1.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
