The Senate resolved in Committee of the Whole in order to receive the Honourable Mark Holland, P.C., M.P., Minister of Health, and the Honourable Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada, each accompanied by two officials, respecting the subject matter of Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2.

Senator Cardozo: Welcome, ministers, and thank you very much for being here to take our questions. As you know, senators and, indeed, all Canadians care very much about this issue, and your time is greatly appreciated today.

I want to quote briefly from a letter that I received in order to give voice to this viewpoint and obtain your response. The writer says:

It is wrong and unconstitutional to continue to exclude individuals with mental disorders from equal access to the law. People across Canada who have been suffering from mental disorder that cannot be relieved under conditions they find acceptable should have the same right to autonomy and choice as individuals with grievous and irremediable physical conditions.

What would your response be to this Canadian?

Mr. Virani: Thank you, Senator Cardozo, for the question. Obviously, the constitutionality has been at the heart of the MAID discussion since the Carter decision was rendered back in 2014-15. What I would say to that individual is this: When you get at the heart of an equality analysis under the Charter, you look at whether you’re perpetuating negative stereotypes, or attacking or impugning the dignity of the individual. Our government, Minister Holland and I have all said that there’s an equivalence between mental suffering and physical suffering. There is no daylight between those two. As well, there is no perpetuation of a negative stereotype about the decision-making capacity of an individual who is mentally ill.

However, there is an appreciation of the complexity of applying determinations about capacity and decision making in the context of people who are struggling, and who may be making requests in a time of crisis — that has to be distinguished from a considered and reasoned application of MAID — and where suicidal ideation can enter as part of, as a feature of or as a symptom of someone’s mental illness. We have to be absolutely sure that the people who are doing the assessments have the ability to distinguish what is a symptom of a person’s condition versus what is a reasoned request for MAID. It’s deeply complex.

If I’d had the time, I would have said the following to Senator Wallin: It’s not just that MAID is different from what general health care practitioners do, but it’s also that providing MAID in this context is substantively different — qualitatively different — than any other context that has been provided. Are there Charter issues at stake? Absolutely the Charter is at stake. But what I firmly believe, and what is reflected in that Charter statement, is that we have to make triple sure that we have the rigorous assessment and training in place so that people can make the evaluation. It’s critical to get that evaluation right. I don’t think the Constitution mandates me or our government to provide a health care service when it is not safe to do so, and that’s our determination: It is not safe at this time.

Senator Cardozo: Thank you. I do appreciate your keen arguments about the Constitution.

My other question is this: Why three years? A year ago, when your predecessors were before us, they asked for one year. Why did you not take one year or two? Why three?

Mr. Virani: In terms of this timing piece — and this came up in the interaction with Senator Wallin as well — we’re trying to reflect what we’ve heard from health care providers. We’re trying to ensure that we’re not repeatedly back in front of this chamber or the House of Commons, continuously seeking extensions. We’re looking at the road map in front of us in terms of having a sense of when we will have a better understanding and appreciation of the development of further mechanisms.

One thing that hasn’t been elaborated upon here is that a critical component is back-end oversight, analysis and case reviews. My understanding — and Minister Holland will correct me if need be — is that it’s only the coroner’s offices in Quebec and Ontario that mandate a review of such cases of MAID across the board. We want to see rigorous application of such oversight processes as well as rigorous take-up. We feel confident that within two years’ time, a joint committee made up of senators and MPs will be able to evaluate that and, within three years’ time, we’ll be able to go ahead. Having a back-end timing window ensures that people continue to do the work that is necessary. That’s critically important.

Senator Cardozo: Thank you.