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, #4 – 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 major report was released on March 11, 2025. 1 It was produced by the Office of the United Nations High Commissioner for Human Rights (“OHCHR) – also known as UN CRPD Committee. It asked Canada to repeal Track 2. One of the reasons was that it violates the rights of persons with disabilities. As a lawyer Montreal and elder law attorney, I agree with such request to repeal. 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 legislation which 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.” 2
The federal law in force contains an exclusion. Ineligible for MAID are persons with a mental illness as their sole medical condition. That was to change on March 17, 2024. The Canadian government was set to remove this exclusion. Eligible for MAID would then be people suffering solely from a mental illness, meeting all eligibility criteria. But the government pulled back and delayed making the move. To encapsulate where we are, here’s a quote.
“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.” 3
Commentary
This 2016 MAiD law was exceptional. It originally had a narrow application – “grievous and irremediable medical condition.” (Nonetheless in my perspective, it wrongly enunciated a right to death.) However, the law morphed. Most recently, the Federal government was striving to remove the exclusion to eligibility for MAID for individuals with a mental illness as their sole medical condition. But it has been “stop & go.” For me, that shows the MAiD program to be struggling. And now, there’s the OHCHR report, expressing grave concerns, pushing back against MAiD, track #2. Let’s delve 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.” 4/5
REPORT
The report reflected an exchange between the panel and the Canadian delegation. Hereinafter are several excerpts:
“Rosemary Kayess, Committee Expert and Leader of the Taskforce for Canada, said it was concerning that persons with disabilities sought access to medical assistance in dying due to unmet needs, which was a systemic failure of the State party. The disproportionate impact of these failures, which included poverty, and a lack of access to employment and services, underpinned the so-called choice for seeking medical assistance in dying as an alternative. How was this not State-sanctioned euthanasia? If choice was the trigger, why was there not also a focus on addressing the support that person needed, which would take them away from social isolation where they perceived dying as the only option they had?
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The delegation said medical assistance in dying was a deeply complex and personal issue and there had been continued debate under the circumstances under which it should be available. The Government was continuing to enhance its monitoring of the provision of medical assistance in dying. Healthcare provisioners were required to report on all cases. The medical assistance in dying act entered into force in 2015, ensuring people had dignity at the end of their life. Since 2024, legislative amendments meant people who had serious physical disabilities could ask to have their lives ended, but they needed to comply with a number of provisions. The law did not allow access to medical aid for assisted dying for those with mental health challenges.
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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.
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It was striking that the disability act did not consider children with disabilities; why was this? Canada was planning to extend the current rules of assisted suicide to children with disabilities in certain circumstances. Did the State party conduct children’ rights impact assessments to its laws and policies on a general basis? Were the State party’s support measures to children with disabilities sufficient?
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Another Expert said there was extensive willingness to allow medical assistance in dying in Canada’s Criminal Code. The Code put disability as one indication for justification of “mental or psychological pain a person could not tolerate”. On what basis was it decided that disability could be accepted as a justification to ask for legal assistance for suicide? When mental health was excluded from the Code, would bullying or stigma as a result of a physical disability be permitted? How did the State ensure that persons with intellectual disabilities, including Down syndrome, autism, or multiple disabilities were provided with supported decision-making?
A Committee Expert asked what the current situation was in Canada with the provision of assistive technology for persons with disabilities?
…
ROSEMARY KAYESS, Committee Expert and Leader of the Taskforce for Canada, asked if the Quebec judgement was seen as a step back into State-based eugenics programmes? It was concerning that persons with disabilities sought access to medical assistance in dying due to unmet needs, which was a systemic failure of the State party. The disproportionate impact of these failures, which included poverty, and a lack of access to employment and services, underpinned the so-called choice for seeking medical assistance in dying as an alternative. How was this not State-sanctioned euthanasia? If choice was the trigger, why was there not also a focus on addressing the support that person needed, which would take them away from social isolation where they perceived dying as the only option they had?” 1
Key Takeaways
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.
Analysis
OHCHR is an important organization. In effect, it’s a ‘watchdog.’ Thankfully, it did not simply serve as a rubber stamp for Canada’s legislators.
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. In effect, they’re asking a crucial question – “Are we doing wrong when it comes to people who are not mentally well? Those with disabilities?
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.
Commentary
First, I believe that 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. For me, MAiD is fundamentally wrong. I say this with great empathy for those suffering. Instead of MAiD, I see the solution in terms of the government putting more money in palliative care, and making it more widely available.
Second, I equate the government’s delaying the exclusion removal with indecision as to what to do. That means the MAiD program is in trouble.
Third, let’s recognize that the report is a blow to MAiD. The opinion of the committee offers impetus to opponents to MAiD. I take it as a rebuke to Canada’s bloated ‘right’ (actual of intended) to death.
What’s next?
Now that this report is out, the question is, “How should Canada respond thereto?”
- Canadian lawmakers could simply ignore this report. That would be a mistake. We pay attention to a whistleblower complaint, don’t we?
- Or Canadian lawmakers could take it as a second opinion.That would be preferable. These findings should give them pause. I encourage Canada’s Parliament to revisit the issue and pivot.
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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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NOTEWORTHY
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 now benefited from even more information. This expert panel has made reasoned assertions and recommendations. In closing, as a lawyer Montreal and elder law attorney, I just want to do right and say, “Let’s assist the death of this misguided law. In the alternative, let’s find a ‘Goldilocks’ balance in this equation!”
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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.
1. https://www.ohchr.org/en/meeting-summaries/2025/03/experts-committee-rights-persons-disabilities-commend-canada-accessible
2.https://www.justice.gc.ca/eng/cj-jp/ad-am/bk-di.html
4.https://www.ohchr.org/en/about-us/what-we-do
5.https://www.ohchr.org/en/treaty-bodies/crpd
6.https://www.goodreads.com/quotes/tag/assisted-suicide
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