Hon. Pierre J. Dalphond: Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.
The bill has only one very short provision that targets only one provision of the Criminal Code, the one that makes mental illness ineligible for medical assistance in dying.
My speech has three parts. First, I want to talk about where the exclusion for people suffering from mental illness came from. Second, I will explain why the Senate refused to support that exclusion in 2021, and third, I will talk about the reasons for extending the exclusion.
The debate we’re having here today is in response to the September 11, 2019, ruling of the Quebec Superior Court in Truchon and Gladu.
This ruling found unconstitutional some provisions of the Criminal Code and some provisions of Quebec’s Act Respecting End-of-Life Care, which made a reasonably foreseeable death a condition for accessing medical assistance in dying. According to the judge, this criterion, which wasn’t suggested by the Supreme Court in its 2015 ruling in Carter, violated the constitutional rights of Mr. Truchon and Ms. Gladu, namely the right to equality.
Both the Government of Quebec and the federal government accepted that ruling and promised to take appropriate action.
At the federal level, this took the form of Bill C-7, which was introduced on October 5, 2020. The bill added a second pathway to medical assistance in dying for people suffering from an incurable disease that is causing them intolerable suffering, without that suffering being the cause of imminent or foreseeable death.
By contrast, in Bill C-7, the government proposed to deny access to medical assistance in dying to individuals suffering only from mental illness, arguing that this was an appropriate measure given the lack of sufficient consensus among psychiatric experts at the time.
This is the origin of track 2 and of the exclusion of those suffering from only a mental illness, even if their illness was found to be incurable and the source of unbearable suffering as explained by Senator Kutcher a few minutes ago.
I move now to the reasons why the Senate disagreed with the permanent exclusion. As you may remember, Bill C-7 received much attention in the Senate. First, there was a pre-study in the fall of 2020 that led to a comprehensive report released in February 2021, which has been quoted extensively by many witnesses before the joint committee recently.
On the exclusion of mental illness as a sole condition, our legal committee reported a lack of consensus about the irremediable character of many mental illnesses and signalled that renowned legal experts, such as Professor Downie of Dalhousie University, have argued that the exclusion was unconstitutional.
During the third reading debate in the Senate, five amendments were adopted — some after lively debates. One was the addition of an 18-month termination date on the exclusion of those suffering solely from a mental illness. For the majority of this chamber, this group exclusion was discriminatory, resting on stereotypes and biases against mental illness and thus even unconstitutional. Only a mechanism providing for a case-by-case assessment of requesters of MAID could be acceptable.
The government finally agreed with this conclusion, ending the group exclusion through a sunset clause two years after Royal Assent. That’s going to be March 17, a few days from now. In addition, the government proposed an independent review by experts in relation to MAID and mental illness, including safeguards.
A majority of the House of Commons agreed with these proposals, and we later accepted them. As a result, the exclusion from track 2 of those suffering from a mental illness was to end on March 17, 2023.
At the time and to this day, many psychiatrists and citizens believe that a group exclusion for individuals suffering from an incurable mental illness is the option to be preferred. This is the goal of Bill C-314, a private bill tabled yesterday in the other place.
But it remains that this is not the view of most Canadians according to a recent poll conducted by Ipsos for Dying With Dignity Canada. In the context of treatment-resistant mental illness with intolerable suffering, 34% of Canadians strongly support access to MAID in such a case, 48% somewhat support access, 10% somewhat oppose and 7% strongly oppose.
Essentially, over 80% of Canadians think that access to MAID should be available for those suffering in that type of situation, which is incurable illness and unbearable suffering.
In my view, those numbers confirm that the Senate rightly concluded that a permanent exclusion was not only unjustified and likely unconstitutional, but also that Canadians do not support further stigmatization of those suffering from an incurable mental illness. The law should not treat them as unable to make a choice for themselves by denying access to track 2 if they are otherwise eligible and meet the safeguards provided for track 2.
Bill C-39 does not revisit the exclusion issue but, rather, it extends by one year the current temporary exclusion. We must ask this: Why postpone the coming into force of track 2 access for those suffering solely from a mental illness who otherwise meet the stringent requirements of track 2? The answer is that Parliament should proceed with some caution in lifting the exclusion in order to allow provinces and territories sufficient time to prepare for the required assessments. Harmonization and proper training for assessors are critical.
As Minister of Health Duclos has noted, the development of practice standards for MAID falls outside direct federal responsibility. He also said that the government:
. . . is actively engaging [provinces and territories] and the Federation of Medical Regulatory Authorities of Canada on the development of consistent practice standards.
In his speech, Senator Kutcher referred to the efforts that are being deployed across Canada to achieve such harmonization and develop assessment procedures and standards.
The recent Special Joint Committee on Medical Assistance in Dying, where I had the honour to serve with Senators Martin, Kutcher, Mégie, Wallin and 10 members of Parliament, shared the responsibility of completing an interim report and a final report on various issues related to MAID. The interim report tabled last June was on MAID and mental disorders, and it was dedicated to reviewing the task force report.
A government response followed in October. By that time, everybody was working hard to meet the requirement of March 17, and the government was hopeful that date would be met.
However, further witnesses heard by the committee led the committee to conclude in its final report, which was tabled on February 15, that we were not yet ready to move forward. That final report includes 23 recommendations, including one in relation to mental disorders. That recommendation is to agree with the government about postponing the date of March 17 and also proposes to re-establish a joint committee five months before the new exclusion date, which is March 2024, in order to verify the degree of preparedness attained for a safe and adequate application of MAID for mental disorders as a sole underlying condition. Again, that recommendation reflects a cautious approach.
However, there are also risks to not removing the exclusion in a timely way. The special joint committee noted in its report that the delay in eligibility under Bill C-39 may prolong the suffering of some individuals who are otherwise able to receive MAID. Senator Kutcher referred to that, and I believe most of you received emails from those people, urging us not to accept Bill C-39 and not delay further access to MAID.
Essentially, adults who meet the eligibility criteria for MAID — including irremediability, informed consent and intolerable suffering — currently face discrimination as a class when their condition is mental as compared to physical, or when compared to having both physical and mental conditions, when we don’t dispute their ability to consent to MAID.
In my view, Charter compliance very likely requires a MAID law that allows for a case-by-case analysis of eligibility based on individual facts, such as assessing capacity and past attempts at treatment. Such an approach will occur for cases of mental disorders once the sunset clause expires — now in March 2024.
Indeed, Parliament has considered MAID in the context of mental disorders for a long time. Senator Seidman and former Senators Cowan, Joyal, Ogilvie and Nancy Ruth served on another special joint committee on MAID in the Forty-second Parliament. In their 2016 report over seven years ago, recommendation 3 urged:
That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.
On legalities, let me refer to lawyer Shakir Rahim’s testimony to the special joint committee on October 4, 2022. He discussed MAID and mental disorders in relation to the 2020 Supreme Court decision of Ontario (Attorney General) v. G, a leading case on section 15 equality rights. During our third reading debate on Senator Kutcher’s amendment to Bill C-7 I referred to that decision of the Supreme Court regarding mental disorders. The special joint committee’s final report also refers to that decision.
As Mr. Rahim told the committee:
In my view, the recommendation of the expert panel on [medical assistance in dying where a mental disorder is the sole underlying medical condition] conforms to the spirit and letter of the section 15 jurisprudence. . . .
Senators, these conclusions show the necessity of having access to MAID for mental disorders.
However, it must be done in a way that ensures that there is no slippery slope and no mistakes that might contribute to opposition to this expansion. That’s why, honourable senators, I suggest that we pass Bill C-39, and I have a message for anyone who may be listening. This is not about opposing your right to MAID; it is simply a pause. Your right to medical assistance in dying is constitutionally recognized and will soon be available.