In this expert interview, Claire Adam, a 2026 Centre for Constitutional Studies Summer Student, speaks with Dr. Kerri Froc (University of New Brunswick), who unpacks the constitutional implications and social effects of the current MAiD scheme in Canada, as well as possible avenues for MAiD law reform.
Q. There is a general public awareness that the old blanket prohibition on Medical Assistance in Dying (“MAiD”) was struck down by the Supreme Court of Canada (“SCC”) in Carter v Canada (Attorney General) (“Carter”).[1] To lay the groundwork for our discussion, could you provide a quick refresher on what the SCC said in Carter?
A. There is some controversy as to what the SCC did or did not say in Carter, but I think the important thing to know is that Carter didn’t recognize a general constitutional right to MAiD. The SCC held that the blanket criminal prohibition violated section 7 (the right to life, liberty, security of the person) as it related to a defined class of competent adults who were clearly consenting and had a grievous and irremediable medical condition that caused them intolerable suffering. There were a number of findings that the SCC made based on section 7.
First, the right to life claim was engaged by a particular causal mechanism: some people with degenerative physical conditions were faced with a “cruel choice” to either end their lives prematurely while still physically able to do so, or risk losing the physical capacity to commit suicide and be left in a perpetual state of intolerable suffering until they died. This cruel choice heightened the risk to the right to life by causally increasing the risk of death.
Second, the rights to liberty and security of the person were engaged because the prohibition interfered with a person’s fundamental decisions about their bodily integrity and medical care.
As all three parts of section 7 were engaged, the SCC had to decide whether the deprivations of those rights were in accordance with the principles of fundamental justice. The SCC found that the objective of the legislation was to prevent vulnerable people from being induced to commit suicide in a moment of weakness, essentially. The SCC held the prohibitory scheme was overbroad, as the blanket prohibition also captured people who were competent, fully informed, and not being coerced or under duress. The SCC also accepted that the risks could be limited through carefully designed and scrupulously monitored safeguards meant to protect vulnerable people.
The SCC’s findings are important for the current debate in a number of ways. First, the SCC said multiple times that it was only deciding on the facts before it and was not going to comment on other circumstances. Second, the SCC did not address the section 15 claim that was raised. Those are some of the really important aspects of Carter.
Q. So, Carter did not legalize MAiD for everyone but essentially directed Parliament to amend the Criminal Code to allow MAiD in narrow circumstances. How did Parliament respond to the SCC’s direction?
A. I’ll start by saying that the SCC didn't direct Parliament to do anything. Rather, the SCC held that the current scheme violated section 7 and could not be saved by section 1. The SCC ordered a suspension of invalidity, which was later extended, so Parliament could go back to the drawing board and consider the SCC’s comments. As a result, Parliament created these exemptions from various criminal prohibitions, like aiding suicide and culpable homicide, so medical practitioners would not be criminally liable if they followed the MAiD regime.
The criminal exemptions were set out in the law in 2016. The revised Criminal Code provision said that death had to be reasonably foreseeable. It also included a definition of grievous and irremediable medical conditions, drawing upon Carter, which hasn’t changed over the years. The definition states you have to have a serious and incurable illness, be in an advanced state of irreversible decline, and experience physical or psychological suffering that is intolerable to the person, and cannot be relieved under conditions they deem acceptable. These suffering and acceptable relief criteria are subjective, though, as every person, for him or herself.
After that scheme (Bill C-14) was enacted, the Quebec Superior Court in Truchon v Canada (Attorney General) (“Truchon”) struck down the requirement that death be reasonably foreseeable. The Government of Canada did not appeal this decision. Instead, Parliament passed Bill C-7 in 2021.[2] This amendment to the regime created two procedural tracks for MAiD: “Track 1” is for people whose natural deaths are reasonably foreseeable — sometimes described as “terminal” — while “Track 2” is for people that have grievous and irremediable conditions where death is not reasonably foreseeable.
Track 2 has a number of additional safeguards, including that one assessor must have relevant expertise or consult someone who does, and has an obligation to inform the patient of all the reasonable means available to alleviate their suffering. The issue with the guidelines for these two tracks is that MAiD assessors can say a person, who would fall under Track 2, can leapfrog over those additional requirements by having a settled intent to refrain from eating or drinking, and potentially fall within Track 1. Essentially, there is a loophole. The Medical Assistance in Dying (MAiD) Review Committee Report by Ontario’s Office of the Chief Coroner, talks about how some assessments were approved and people received MAiD within 24 hours.[3] So, that's concerning.
Bill C-7 also included a provision that disqualifies people whose sole underlying condition is mental illness from accessing MAiD, but this provision had an expiry date, which has been pushed further and further down the road. Currently, its endpoint is March 2027, although the parliamentary committee that reported to Parliament on this issue has recommended that the expiry of provision be postponed indefinitely.
Q. In the years after Carter was decided, we have seen lower courts interpret Carter to guarantee access for persons whose deaths are not reasonably foreseeable and for individuals for whom mental illness is the sole condition. What is your view on these cases’ interpretations of the law?
A. What is important to note about cases like Canada (Attorney General) v EF (“EF”)[4] and Truchon is that they have frail shoulders on which to carry the weight of arguments favouring MAiD expansion.
EF was a constitutional exemption case following Carter where people could apply for individual exemptions from the Criminal Code during the provision’s suspension of invalidity. In EF, the claimant’s psychiatric condition was quite unlike the conditions people have in mind when they are lobbying for psychiatric MAiD; EF had a severe conversion disorder that caused excruciating pain and physical symptoms but did not have depression or suicidality. When civil servants from Health Canada and the Department of Justice were asked, “have you heard of anyone receiving MAiD for a sole underlying, psychological condition?” they did not identify any such case.
They didn’t recognize EF as a psychiatric MAiD case, so it didn’t inform whether Parliament should include a criminal law exemption for psychiatric conditions as the sole underlying medical condition, which is now at the center of the debate.
As for Truchon, it invalidated the requirement that a person’s death must be reasonably foreseeable to qualify for MAiD. Both applicants had severe physical disabilities that did not affect their capacity, but their conditions were not terminal. So, the question was whether it was constitutional to deny them MAiD. The Court found that there was a violation of sections 7 and 15 and made a number of findings that deviated from Carter.
One of those findings concerned section 7. Remember that Carter had determined that the deprivation of the right to life was based on a cruel choice — between potentially ending your own life while still able, or potentially waiting too long to not be able to do anything, and be left to suffer while living.
The Court in Truchon changed that. It said that the cruel choice was between a person suffering now or potentially committing suicide using alternative options to MAiD, which may cause more suffering. So, the lack of access to MAiD was seen as the deprivation of the right to life, because some might end their own lives sooner if they didn’t have the reassurance that they could access MAiD.
As for section 15, the Court extended its liberty analysis to the right to equality, saying that the law interferes with some people’s ability to make fundamental life decisions and therefore is discriminatory. Now, under section 7, the question before the Court was, if you don’t have a physical incapacity, is your liberty implicated in the same way? Under section 15, the question now becomes that some people with disabilities have access to MAiD under Track 1, is it a discriminatory distinction because others with non-terminal conditions are excluded? So, there’s a legal distinction based on the kind of disability, which the Court found discriminatory because it’s perpetuating a stereotype that people with disabilities don’t have autonomy, don’t make good choices, etc. However, the Court’s reasoning is odd, because the law already provided certain people with disabilities the autonomy to make that decision. So, how does this provision that excludes people who do not have terminal illnesses perpetuate this stereotype? The Court does not fully answer this question. Rather, the Court takes section 7’s liberty analysis and plunks it into section 15. This is problematic for a variety of different reasons.
First, the section 7 analysis is hyper-individualized, because if you deprive one person of the right to life, liberty, or security of the person in a way that is overbroad, the law shouldn’t apply to them, resulting in a section 7 violation.
Section 15 doesn’t work that way. Rather, a section 15 violation requires a claimant to prove that there’s a distinction based on a ground that causes group disadvantage. The Court in Truchon found there were people slipping through the cracks that could benefit from the law, but that does not make the law discriminatory. The exclusion of some people who could have benefited from MAiD does not, without more, perpetuate the notion that a group is lesser than, nor does it reinforce group disadvantage. So, the Court conflates section 7 with section 15. The bottom line is that there is a whole host of problems with treating those two cases as saying that Carter has already constitutionalized a right to MAiD, including psychiatric MAiD, and that the government’s decisions not to seek leave to appeal EF to the SCC, and not appeal Truchon are somehow a concession that the Criminal Code provision was unconstitutional.
Q. The United Nations Committee on the Rights of Persons with Disabilities notes that people with disabilities are disproportionately choosing MAiD, which they reason is connected to negative ableist views on disability.[5] How might ableist beliefs manifest in our MAiD policy?
A. First of all, anyone applying for MAiD would probably qualify as having a disability, whether they identify as such or not. However, looking just at disproportionality, people under Track 2 disproportionately self-identify as having a disability.
The issue that arises is that the government isn’t a neutral dealer in these controversial policy areas. In relation to MAiD, it’s the very same governments that are providing social welfare benefits, like home care and social assistance, that allow people to live lives with dignity. Now, when those benefits are being rationed in such a way that people can’t live lives that they feel are dignified, MAiD is presented as an alternative.
Second, there is a message perpetuated to the population at large that living with a disability is a fate worse than death. For instance, people with a catastrophic injury will go through a period of time where they have to reconcile themselves with the fact that they are going to live with disabilities, which can trigger suicidal thinking. But after this period, there are many that realize they can live enriched, good lives. So, what are we saying when we are telling people that if you have these kinds of injuries, MAiD is the option for you?
Krista Carr, the CEO of Inclusion Canada, asked: how can we talk about autonomy and choices when people don’t have adequate home support, housing, income support, pain treatment, other disability-related care, or even social connection? She described a number of people that called Inclusion Canada, who had already been approved for MAiD, saying they didn’t want to die, but want to live lives worth living. One thing that struck me is she said that one person called and said, she just wanted to have “at least one friend.” The social isolation that one can feel when you’re living with a disability and you don’t have those kinds of supports can be very profound.
You can also talk about concepts of irremediability and the question of whose conditions are deemed treatable and whose are not. What if the system could offer treatment, but doesn’t, and that person can’t go elsewhere to pay for it? That can leave a person with an effectively irremediable condition for which you can receive MAiD if the other criteria are met. If you’re under Track 2 MAiD, the physician assessing you is required to talk to you about alternatives to reduce your suffering, but it doesn’t mean that the state must provide real access to those supports to you.
We have to get beyond these abstract appeals to autonomy and look at the context in which people are making choices. A lot of times, it’s a choice between MAiD and not very good options. Let’s give people actual free choices, and then we can talk about MAiD expansion when we can be assured that people are able to exercise autonomy. Otherwise, there are issues of normalization.
Q. In Alberta, the provincial government recently passed Bill 18: Safeguards for Last Resort Termination of Life Act (“Bill 18”), which sets out several regulations on MAiD administration in the province.[6] Most notably, once in force, Bill 18 will ban outright Track 2 MAiD, which is currently permitted under the Criminal Code, for individuals with incurable disease, illness, or disability whose death is not reasonably foreseeable within 12 months.[7] Is the provincial government encroaching on Parliament’s criminal law power by prohibiting an exemption permitted by the Criminal Code?
A. When the Department of Justice lawyers and Health Canada officials testified before Parliament, they said that provinces have the authority to impose stricter MAiD requirements and the jurisdiction to regulate health care. The Criminal Code itself states the provision of MAiD shall be done in accordance with provincial regulation of professions.
The federal government isn’t creating a right to MAiD. It's creating a regime with a criminal exemption so that MAiD can exist. To what extent they provide it, and in what circumstances, is really up to the provinces. Different provinces are going to have different rules as to what is going to be provided by the government. The Canada Health Act does provide a threshold for medically necessary services, but beyond the federal spending power and the federal criminal law, it’s up to the provinces to regulate and fund their professions and to regulate hospitals and the provision of healthcare in the way that they choose.[8]
Of course, there might be implications when a province makes a colorable attempt to pass criminal law, as seen in R v Morgentaler when the Nova Scotia government was mad that we had no criminal law about abortion and made it a provincial offense with penal consequences.[9] It was obvious that the government was just trying to replicate the criminal law. That’s not what’s happening here though. There’s the evidentiary record, including the law itself and the history of MAiD, and nothing points to a similar circumstance. So, I think the province is in good standing as far as the division of powers goes. Now, of course, the Charter is another issue, and we might see Truchon-like Charter challenges in Alberta, but given the deficits of Truchon, I think that it’s anyone’s guess as to what Alberta courts will do with that.
Q. In the news, we have heard stories of vulnerable people choosing MAiD because they feel they have no choice.[10] According to the Alberta government, regulations put forth in Bill 18 are intended to safeguard vulnerable populations most likely to face systemic barriers to accessing health and social services.[11] Specifically, the Alberta government is mandating that MAiD assessors and providers complete training while prohibiting them from initiating conversations about MAiD with patients.[12] Additionally, MAiD assessors and providers are not allowed to provide referrals outside the province or display posters or flyers on MAiD in health facilities.[13] If this policy were adopted nationally, would it be sufficient to protect vulnerable populations, or are there other amendments, up to and including the repeal of Track 2, that would be required?
A. There’s two issues here, I think. One’s a policy issue and one's a constitutional issue.
The policy issue is for governments to decide. And governments make those kinds of calculations all the time. Speed limits are a good example. Every time you raise the speed limit, you can quantify how many additional deaths will result from a five-mile increase. But it’s also a matter of making sure traffic flows, so people aren’t frustrated on the highway. Governments are always making these decisions that affect a whole bunch of stakeholders, and from a policy perspective, the question is, what’s sufficient? Is it sufficient that we’re protecting most people from an unnecessary death? That’s something for governments to decide in accordance with social morality.
From the constitutional perspective, the SCC has said in the extradition context that one state-caused death of an innocent person is one too many. In Carter, the SCC did not have to confront this issue in the same way because we had evidence at that time saying that a tight criminal exemption with strict safeguards could protect vulnerable people. With the evidence available now, the SCC was maybe being too optimistic.
The question is, what kind of margin of appreciation do we give government in drawing the line on where one death is too many? I think the margin of appreciation is going to depend on what safeguards we have. In the Netherlands and other European countries, for example, they don’t have a prohibition against healthcare providers proactively bringing up MAiD. Because of that, there is potential for coercion when you have an authority figure like a doctor bringing it up without the person asking about it first. However, they also have a very robust, regulatory system. Whereas in Canada, we know from Ontario that there are compliance issues in over 400 cases spanning five years, but there have been no criminal sanctions. We have maybe one professional body, the College of Physicians, that has sanctioned someone for not complying with the MAiD requirements. So we don’t have that same kind of robust kind of regulation.
Additionally, we don’t have the requirement that all reasonable treatments have to be attempted. We have subjective criteria concerning whether the suffering is intolerable to the person and whether there are acceptable means of relief. You can refuse treatments, even if the treatments are reasonable. Five per cent of all deaths in Canada are MAiD deaths, which places us in a very high bracket along with other countries that have had MAiD for decades.
Q. The Alberta government also plans to prohibit MAiD for persons whose sole underlying medical condition is a mental illness, despite Parliament not yet deciding to maintain an exclusion of mental illness from the Criminal Code, given the exemption is set to expire in March 2027.[14] However, there remains an ongoing debate about our current MAiD scheme, as many critiques from advocacy groups and international organizations state Track 2 infringes on section 15 rights. Could you please explain how Track 2 violates the equality guarantee under section 15, given that Truchon found that denying access to MAiD for those whose deaths are not reasonably foreseeable violated individuals’ section 15 rights?
The section 15 claim is framed around the fact that there is general criminal-law protection against homicide and assisting suicide, and the general response to suicidality for the dominant group in society is suicide prevention. But when it comes to persons with disabilities, we aren’t going to provide them with the same protection.
The question I struggle with is, why should some people suffer? Isn’t it just more just and kind to allow MAiD? But it’s not so straightforward. We don’t necessarily diminish suffering by allowing these ever-increasing exemptions. These expansions have a cost as well, and some of that cost is that people with disabilities are concerned about going to healthcare providers because they don’t know if they will be offered MAiD instead of receiving adequate and competent care, or if their lives will be devalued when they seek care.
I think it would be fairly easy to demonstrate that Track 2 makes a distinction on the basis of disability because persons with disabilities are the only group for whom there is a Track 2 exemption to the criminal prohibition. This would satisfy the need for a distinction under section 15.
Now, does this distinction perpetuate a disadvantage? Does it perpetuate the stereotype that you’re better off dead than living with a disability, or that people’s lives with disabilities don’t matter as much? Does it perpetuate the disadvantage that people with disabilities face in accessing social supports and healthcare? I think those are all very good questions, and I think that there’s a real possibility that the current state of affairs could be found to violate section 15 in the context where social supports aren’t adequately provided for people that have disabilities.
Q. Health Canada’s 6th Annual Report on MAiD found approximately 1/3 of Track 2 recipients resided in neighbourhoods of high instability, economic dependency, and situational vulnerability.[15] How might section 7 rights be engaged for individuals seeking MAiD who experience barriers in accessing social and health services like housing and medical treatment, to name a few?
One of the major challenges that is incredibly frustrating to me is that we see people advancing successful section 7 cases concerning MAiD based on autonomy, while there are unsuccessful claims that the state has deprived people of the right to life and personal security because they are unable to access healthcare services and are unable to live lives with dignity. Those are generally characterized as economic claims outside the scope of section 7. Is this really what it has come to, that section 7 will protect the autonomy interests of persons with disabilities in accessing MAiD but not their rights to live lives with dignity? I think this is something the framers and ratifiers of the Charter and people with disabilities who testified during the constitutional negotiations in the 1980s would say is completely anathema to section 7.
Q. Health Canada reported that 56.7% of those receiving MAiD under Track 2 identified as women.[16] Does this create a gender disparity in the application of the law contrary to section 28 of the Charter?
A. I think those statistics are kind of like a canary in the coal mine in terms of what’s happening, and I think it's a sign of a larger concern.
There’s a question of whether there are gendered reasons that women under Track 2 are accessing MAiD more. Now, there are some people that say don’t worry about it, because you know, women have more chronic conditions and comorbidity, etc. But the incidence of chronic conditions isn’t a neutral fact. Women suffer more from gender-based violence that can cause traumatic brain injuries and other conditions that result from gender-based disadvantage.[17]
As Professor Isabel Grant states, women, and particularly older and Indigenous women, suffer from chronic illness, poverty, male violence, and medical ableism. This brings us back to whose conditions are deemed to be treatable and whose aren’t. It’s a notorious fact that women get dismissed from their doctors more often than men or are told that it’s all in their head, which results in further suffering, or they’re under-treated for pain. So, irremediability in and of itself could be seen as a gendered concept. There’s more work that needs to be done to figure out what is causing this gender disparity, but there’s definitely the potential for there to be section 28 implications.
Now, we don’t necessarily need to rely on section 28 here as a stand-alone provision — that’s more at issue if you cannot rely on rights like section 7, if the notwithstanding clause is invoked for example. Yet, when more women’s rights to life, liberty, and security of the person are being infringed than men, you could argue that it’s also a section 28 violation. Now, where it might get interesting is that if you have both section 7 and 28 violations, then we have to ask if section 1 applies. Can the government justify limiting women’s rights in a disproportionate fashion? That’s where it gets really interesting, and the Supreme Court has not resolved the issue of the interaction of section 28 and section 1.
In my PhD dissertation, I wrote about the framers of section 28, who told the politicians that section 28 wasn’t going to allow for government justification of sex discrimination, but the politicians were not dissuaded from including it because the women’s lobby was so strong.[18] Even the people on the government side were saying they knew this, so it’s a mystery to me why there is such controversy surrounding the idea that a section 28 violation does not permit government justification under section 1. Yet, here we are.
***
Claire Adam is a 2L law student at the University of Alberta and worked as a Centre for Constitutional Studies Summer Student in 2026
[1] Carter v Canada (Attorney General), 2015 SCC 5 [Carter].
[2] Truchon v Canada (Attorney General), 2019 QCCS 3792 [Truchon].
[3] Ontario, MAiD Death Review Committee, MDRC Report 2024–4: Complex Same Day / Next Day Provisions: Navigating Complex Issues within Same Day and Next Day MAiD Provisions (Toronto: Ministry of the Solicitor General, Office of the Chief Coroner, 2024) at 6.
[4] Canada (Attorney General) v EF, 2016 ABCA 155 [EF].
[5] Concluding observations on the combined second and third periodic reports of Canada, CRPD, 2025, CRPD/C/CAN/CO/2-3 at s 20(a).
[6] Government of Alberta, “MAID protections for Albertans with mental illness” (18 March 2026) online: <alberta.ca> [perma.cc/S5UA-GVX2].
[7] Ibid.
[8] Canada Health Act, RSC 1985, c C-6.
[9] R v Morgentaler, 1993 CanLII 74 (SCC).
[10] See Alexander Raikin, “No Other Options” (2023) 71 Center for Study Tech & Society 3 at 18; Katie DeRosa, “Cancer Treatment Delayed, B.C. Man Opts for Medically Assisted Death”, Vancouver Sun (5 December 2023), online: <vancouversun.com> [perma.cc/5S9R-HMQJ].
[11] Government of Alberta, supra note 6.
[12] Ibid.
[13] Ibid.
[14] House of Commons, Medical Assistance in Dying And Mental Disorder as the Sole Underlying Medical Condition: A Complex And Challenging Conversation Among Canadians (June 2026) at 40 (Chairs: Yonah Martin and Marcus Powlowski).
[15] Health Canada, “Sixth Annual Report on Medical Assistance in Dying in Canada”, (November 2025) online: <canada.ca>.
[16] Ibid.
[17] See Isabel Grant, Janine Benedet, Elizabeth Sheehy, and Catherine Frazee, “A Conversation on Feminism, Ableism, and Medical Assistance in Dying” (2024) 35:1 CJWL 31.
[18] Kerri Anne Froc, “The Untapped Power of Section 28 of the Canadian Charter of Rights and Freedoms” (PhD Dissertation, Queens University, 2015).