Gold’s Legal Minute*GLM*
OHCHR Report Sounds Death Knell for Track #2, Canada’s Medical Assistance in Dying (MAID) Or Does It?**
By Allan Gold, lawyer Montreal and elder law attorney
Vol. 16, #5 – April 30, 2025
OPENING
For those who follow my blogs, you know I don’t care for Canada’s law regarding Medical Assistance in Dying (MAiD). The current law excludes individuals with a mental illness as their sole medical condition from being eligible for MAiD. But Canada has been intent on changing that. For those who follow my blogs, you know that I really don’t want such to happen.
There has been a big development – a substantial report was released on March 21, 2025. It was produced by the Office of the United Nations High Commissioner for Human Rights (“OHCHR) – also known as UN CRPD Committee. A key recommendation was that Canada should repeal Track 2, arguing that it violates the rights of persons with disabilities. As a lawyer Montreal and elder law attorney, I agree therewith. Let me explain.
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“I want right to end my life through assisted dying” – Desmond Tutu
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CANADIAN CONTEXT/ Overview
In June 2016, Parliament passed federal legislation that allows eligible adults to request medical assistance in dying. A requirement is that one must have a “grievous and irremediable medical condition.” To be so considered, you must meet all of the following criteria. You must: *have a serious illness, disease or disability; * be in an advanced state of decline that cannot be reversed; * experience unbearable physical or mental suffering from your illness, disease, disability or state of decline that cannot be relieved under conditions that you consider acceptable. “On March 17, 2021, Parliament passed former Bill C-7 to revise eligibility criteria for obtaining MAID and the process of assessment.” “The 2021 revisions to Canada’s MAID law created a two-track approach to procedural safeguards for medical practitioners to follow, based on whether a person’s natural death is reasonably foreseeable. This approach to safeguards ensures that sufficient time and expertise are spent assessing MAID requests from persons whose natural death is not reasonably foreseeable, while easing procedural safeguards in cases where natural death is reasonably foreseeable.” 1
The current law excludes from being eligible for MAID, individuals with a mental illness as their sole medical condition. That was to change on March 17, 2024. The Federal government was set to remove this exclusion. As a result, people suffering solely from a mental illness, meeting all eligibility criteria and safeguards would have been eligible for MAID. But the Canadian Government pulled back from the brink.
“Medical assistance in dying (MAID) is a complex and deeply personal issue. The Government of Canada is committed to ensuring our laws reflect Canadians’ needs, protect those who may be vulnerable, and support autonomy and freedom of choice.
Important: On February 29, 2024, legislation to extend the temporary exclusion of eligibility to receive MAID in circumstances where a person’s sole underlying medical condition is a mental illness received royal assent and immediately came into effect. The eligibility date for persons suffering solely from a mental illness is now March 17, 2027.” 2
Commentary
This 2016 law was exceptional – in my perspective, it enunciated a right to death. It therefore had a narrow framework. However, it morphed. Most recently, the government was striving to remove the exclusion relative to individuals with a mental illness as their sole medical condition from being eligible for MAID. But this “stop & go” shows the MAiD program to be struggling. And now, there’s the OHCHR report. It states that the removal of the exclusion would be wrong. Let’s go deeper.
WHO IS OHCHR?
“OHCHR stands for the Office of the United Nations High Commissioner for Human Rights, and it is the leading United Nations entity on human rights. Its primary mission is to promote and protect all human rights for all people. OHCHR serves as the secretariat for the Human Rights Council and other UN human rights bodies” Google Ai
“About UN Human Rights What we do: an overview
As the lead United Nations entity mandated to promote and protect human rights for all, we:
*Works with and assists Governments in fulfilling their human rights obligations
*Speaks out objectively in the face of human rights violations worldwide
*Provides a forum for identifying, highlighting and developing responses to today’s human rights challenges
*Acts as the principal focal point of human rights research, education, public information, and advocacy activities
*Works with a wide range of partners in order to widen the constituency for human rights worldwide.” 3/4
REPORT CRITIQUE
Thankfully, the Committee did not simply serve as a rubber stamp for Canada’;s legislators. Let’s consider the Committee’s major findings. If the report is right, where does that leave us?
Key Findings
Several are as follows:
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The Committee believes that MAID is offered as a state-sanctioned relief for people who were failed by the government due to improper access to health care or housing, Other factors.were: poverty, lack of access to employment and services for people with disabilities and the lack of a support system.
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The so-called “MAID Track 2” has expanded rapidly since legalization but only represented four per cent of the 15,323 people who chose MAID (Track 1 and 2 combined) in 2023, according to Health Canada data.
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A key recommendation was that Canada create a federal MAID watchdog to look into complaints and investigate the causes that lead to people with disabilities applying for assisted death in the first place.
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The Committee was “extremely concerned” by the broadening of Canada’s MAID laws in 2021 to offer medically assisted death to people who have permanent, but non-terminal physical illnesses.
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The Committee asked Ottawa to repeal medical assistance in dying (MAID) for anyone without a terminal illness, also known as “Track 2” in Canada’s MAID program.
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“Another important issue was the legal framework surrounding medical assistance in dying. Canada’s medical assistance in dying framework had been designed to balance important values, including the autonomy and freedom of choice of individuals, and the protection of those who may be vulnerable, including persons with disabilities. There had been ongoing engagement with the disability community to hear their concerns about the potential for vulnerable persons with disabilities, who were not at imminent risk of death, to seek and obtain medical assistance in dying, when their suffering stemmed from unmet needs. This was a complex and sensitive issue.” 5
Analysis
The Committee is calling into question the basic assumption underpinning this MAiD law. For committee members, incomplete and unsubstantiated allegations do not a good conclusion make. They perceive death unduly going to certain people. They’re asking a crucial question – “Are we doing wrong when it comes to people who are not mentally well? With those with disabilities?
Commentary
OHCHR is an important organization. One of its roles is to be a ‘watchdog.’ The committee comes to a stunning conclusion – Ottawa should repeal medical assistance in dying (MAID) for anyone without a terminal illness, also known as “Track 2” in Canada’s MAID program.
For me, the release of this report is a relief. The stance of Parliament is in error. It’s a “Can’t see the forest for the trees” thing. Parliament is so busy trying to be libertarian, it’s missing the greater issue – the lives of the vulnerable and our duty to protect them.
What’s next?
The question for Canada is “How to deal with the report?” In other words, how should Canadian lawmakers respond and adapt thereto?”
We could simply ignore this report. That would be a mistake. We pay attention to a whistleblower complaint, don’t we?
Or we could take it as a second opinion.That would be better! It should give pause to Canada’s Parliament. But more, this is a scathing report –this bloated ‘right’ to death is fundamentally wrong.
The report isn’t a mere setback or blow. Instead, I see the MAiD law as something already in trouble. The report is “another nail in the coffin.” The opinion of the committee puts the opposition to MAiD over the top:
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“Lots of my dying patients say they grow in bounds and leaps, and finish all the unfinished business. But assisting a suicide is cheating them of these lessons, like taking a student out of school before final exams. That’s not love, it’s projecting your own unfinished business”
― Elisabeth Kübler-Ross 6
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GOOD NEWS
Allan J Gold is now featured in FeedSpot Top 90 Canada Law Blogs. Check it out at https://bloggers.feedspot.com/canada_law_blogs/
CONCLUSION
“Canada, you’ve been told.” Now, please do what’s right. In closing, as a lawyer Montreal and elder law attorney, I say, “Let’s assist the death of this misguided law!”
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NOTICE – CAUTION –DISCLAIMER. The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.
- https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html
- https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html#:~:text=The%20law%20no%20longer%20requires,and%20have%20decision%2Dmaking%20capacity
- https://www.ohchr.org/en/about-us/what-we-do
- https://www.ohchr.org/en/treaty-bodies/crpd
- https://www.ohchr.org/en/meeting-summaries/2025/03/experts-committee-rights-persons-disabilities-commend-canada-accessible
- https://www.goodreads.com/quotes/tag/assisted-suicide
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