Criminal Code
Bill to Amend--Third Reading--Debate Continued
February 28, 2024
Honourable senators, I rise today to speak on Bill C-62 — a bill to delay access to assisted suicide for Canadians with mental illness until 2027.
This bill passed the House of Commons decisively by a vote of 272 to 32, and while I’m supportive of this move to delay access now, I submit that the Trudeau government needs to not just delay expanding assisted suicide to people with mental illness, but it also needs to back down completely. Ideologically driven, the Trudeau government seems allergic to admitting that they made a grievous error in ever accepting medical assistance in dying, or MAID, for mental illness in 2021. Canadians don’t want this expansion. Our health care system is not ready for it.
The Trudeau government has recognized this and punted the issue to 2027, beyond the date of the next election, to try to ensure they don’t have to face the electorate on this question. Liberal Health Minister Mark Holland has confirmed that even with the delay on Bill C-62, this expansion for mental illness will not be a matter of “if,” but “when.” However, vulnerable Canadians living with mental illness will ultimately be the ones who pay the price — with their lives — for this pro-expansionist Liberal ideology.
There are two significant reasons why mental illness should not qualify as the sole ground for accessing assisted suicide. First, it is very difficult, if not impossible, to determine the irremediability of mental illness. Second, it is challenging for clinicians to distinguish whether the request for assisted suicide by someone with mental illness is motivated by suicidality, which can change from one day to the next and may be helped with treatment.
Throughout my eight years on the Senate Legal Committee, as we examined this very issue, we heard from many expert witnesses who relayed stories of their seemingly treatment-resistant patients who were able to recover from their mental illness, and improve with the right treatment and resources.
Mental illness is not irremediable. It is not terminal. MAID for mental illness is not — as Senator Kutcher, Senator Mégie and Senator Wallin described it in their dissenting report — end-of-life care. MAID for mental illness is access to the 100% lethal means of death delivered straight into the hands of someone with mental illness.
I can tell you from personal experience — as a caregiver to my late husband, Dave Batters, who struggled with mental illness — that there are huge gaps in the mental health care system in this country. There are waiting lists of months, sometimes years, to even get in to see a psychiatrist. The answer to gaps in the mental health care system is to fix the system — not to confirm a mentally ill patient’s feelings of hopelessness, and offer them the lethal means to suicide. The answer is certainly not to end their lives for them.
It is also difficult to predict with certainty whether a patient’s wish to die is the result of transient suicidality, which may be a symptom of their mental illness, or whether it is a deliberate plan to end one’s life. Not all suicide is impulsive. People with mental illness can also map out a detailed plan for their suicide, and many do.
Often, mental illness produces tunnel vision or a lack of perspective about one’s own life and its worth. It creates a complex environment in which to make a life-or-death decision like assisted suicide. Further, some psychiatric medications also have the side effect of increasing the frequency of suicidal thoughts.
Suicide is arranging one’s own death, as is MAID. But with MAID, you also involve the state. One of the reasons Canada outlawed capital punishment decades ago is that we decided a person’s life is too high a cost if the state makes a mistake.
In a recent article, Senator Kutcher was quoted as taking issue with the argument that MAID and suicide are similar. The article states:
We can’t equate someone who chooses to end their life due to mental illness to a kamikaze pilot or a suicide bomber, [Kutcher] explains. “They’re not the same thing [at] all, but people have deliberately obfuscated with MAiD because it’s an emotional appeal.”
I think the emotional appeal and obfuscation here is conflating suicide with kamikaze pilots and suicide bombers. I am taken aback that an experienced psychiatrist would do that. How many kamikaze pilots and suicide bombers are among the 4,500 Canadians who die by suicide each year? This is certainly not an argument based in any kind of evidence or data, and it is indicative of the kind of extreme rhetoric that the small group of pro-expansionist advocates employ on this issue.
Even expert psychiatrists cannot necessarily tell the difference between suicidality and a qualified request for MAID. Further, the MAID curriculum developed by the Canadian Association of MAiD Assessors and Providers doesn’t teach assessors how to distinguish suicidality from MAID requests for mental illness, but instead falsely assures providers that they can. This is very dangerous. Of the people who attempt suicide in Canada, 23% of them will make another attempt, and 7% will complete suicide. That means at least 70% of people who attempt suicide only try once. But with MAID, that one attempt has a 100% certainty of being lethal. There are no second chances.
There have been horror stories reported in the media about disabled Canadians being offered MAID as an alternative to treatment or resources. Several cases were also reported of military veterans being counselled about MAID by Veterans Affairs Canada when seeking help. Such occurrences are only likely to increase if the Trudeau government expands assisted suicide yet again to mentally ill Canadians.
It can be predicted that expanding assisted suicide will disproportionately affect women. In the first 21 months since assisted suicide was widened to include non-end-of-life cases, 686 disabled Canadians were provided with MAID. In 2022, a full 60% of that cohort was female. Given research in Europe that shows women comprise 70% to 80% of psychiatric euthanasia cases, and given that women attempt suicide at a rate of two to three times that of men, we might expect this gender gap to widen again once psychiatric MAID is enshrined in law.
The government’s Gender-based Analysis Plus, or GBA Plus, for Bill C-62 was not publicly released until after I asked about it during the Committee of the Whole in the Senate. This GBA Plus was radically different from that of Bill C-39 — the bill that delayed MAID for mental illness the first time. Last year’s Bill C-39 GBA Plus was devastating and accurate. It recognized the gender gap in women with psychiatric conditions being more likely to request MAID than men in Benelux countries. It said:
. . . should MAID be made available in Canada for individuals whose sole underlying condition is mental illness, we would see an increase in women seeking MAID for psychiatric suffering, and at younger ages.
But the GBA Plus for the delay in Bill C-62 is very different. All of a sudden, there seems to be no evidence for anything: little data on how MAID will impact people who are mentally ill, no data on race, no data on income and no data on how either of those things impacts MAID. There is evidence lacking from Switzerland, with too few cases to draw any possible conclusions about why women comprise the bulk of psychiatric MAID cases, and even though women are 60% of Bill C-7 cases, we can’t find any possible reason for that. It’s ridiculous, honestly. The Justice Department should have just signed a blank paper that said, “GBA Plus, Bill C-62: The dog ate my homework.”
Minister Holland has tried to muddy the waters around the process for psychiatric MAID by saying:
This is about deciding, as a society, to empower people living with a disease like cancer or who are at the end of life, giving them the opportunity to make a choice for themselves. . . .
When it comes to incurable diseases, that’s the debate we need to have today. We need to make sure that the choice is really limited to cases where a patient has examined all options and where there are no other alternatives to improve their health, after having suffered a great deal.
The minister’s description is not accurate, as MAID for mental illness is not about terminal illness. There is no stipulation in Bill C-7, which was passed by Parliament, that MAID must be a last resort for these patients, or that they have exhausted other medications or treatments over months or years before applying. This makes Canada an outlier from other countries that allow some form of assisted suicide for psychiatric illness.
Now we are at the point where, as Dr. Sonu Gaind stated at the joint committee:
This expansion is not so much a slippery slope as a runaway train . . . . The government has plenty of signs we should not be proceeding. You can choose to go ahead, but you can’t pretend you weren’t warned.
Canada is not ready to proceed with the expansion of assisted suicide for mental illness — certainly not now, and maybe not ever. But the provinces and territories — under not only the Conservative, but also the Liberal and NDP governments — have told the federal government that they are not ready to expand assisted dying to mentally ill people.
Canadians have indicated their rejection of expanding the MAID regime on psychiatric grounds alone. An Angus Reid poll last year indicated only 31% of Canadians agreed with this expansion. In the fall, another national poll found that 82% of Canadians said expansion of MAID to the mentally ill should not be considered before access to mental health care is improved. Even the psychiatric practitioners tasked with facilitating access to MAID for their mentally ill patients have not embraced this expansion. The joint committee found that a scant 2% of Canadian psychiatrists are even signed up for the Canadian MAID curriculum. A recent letter from the Society of Canadian Psychiatry states:
[E]very survey of psychiatrists since the introduction of the sunset clause has consistently shown that psychiatrists across Canada do not support expansion of MAID for sole mental illness . . . . These surveys consistently show that by a 2:1 to 3:1 margin, psychiatrists do not support expanding MAID for sole mental illness, despite most not being conscientious objectors to MAID overall, and even higher rates (by a 4:1 margin) of psychiatrists citing lack of readiness for MAID for mental illness expansion for March 2024.
Undoubtedly, some of these psychiatrists don’t want this expansion to happen because of the duty of care they have for their patients. I’m sure most of them never intended to be involved with the process of ending their patients’ lives in a discipline based on trust between doctor and patient, and modelled on preventing suicide and preserving life.
Senator Kutcher has pointed out that consensus is not required for many medical treatments — physical or otherwise. But assisted suicide is not a treatment; it is death. In the absence of conclusive evidence about the irremediability and suicidality of mental illness, consensus in the medical community must be required.
Providing access for mentally ill people to assisted suicide is not equality. What is actually discriminatory to people with mental illness is confirming their despair and offering them premature death through MAID rather than treatment and support. Mental illness should not be a death sentence.
Over the last eight years, I’ve heard from so many people who have struggled with mental illness. They want hope, help and support — not an easier path to death.
Some proponents of expanding MAID for mental illness claim that this has been mandated by Canada’s courts. As a lawyer, I am telling you that is not true. The expansion of assisted suicide for mental illness was a political decision of an activist Trudeau government — nothing more, nothing less. It is not constitutionally required. In fact, both Justice Minister Virani and previous justice minister David Lametti reluctantly admitted to me here that Canadian courts have not mandated the extension of MAID to people with mental illness.
Twenty-eight law professors signed a letter to the Trudeau government, urging the following line of reasoning: The Supreme Court’s 2015 Carter ruling did not involve patients with mental illness; in fact, it explicitly excluded people with mental illness from the judgment, stating:
. . . “euthanasia for minors or persons with psychiatric disorders or minor medical conditions” would “not fall within the parameters suggested in these reasons.”
Nor did the lower court Quebec judge in the Truchon case pronounce on the constitutionality of extending MAID for mental illness as the plaintiffs in that case were not applying based on mental illness. Any comments made about psychiatric illness by the judge in that ruling were outside the scope of the case and also can’t be relied on for precedent.
The 28 law professors summed up their letter this way:
In the absence of binding precedent, it is premature to argue that the Charter requires access to MAID for persons whose sole underlying medical condition is mental illness. It is in our view also reckless to suggest that a constitutional right to MAID should and would be recognized by our Supreme Court when there has been no meaningful review of the evidence . . . .
Former justice minister Lametti was an activist for the wide expansion of MAID. He chose not to appeal the lower court judge’s Truchon ruling because, frankly, he got an answer that he liked. To not appeal such a ruling by one judge is highly unusual for the federal government.
The Trudeau government has expanded assisted suicide too far and too fast. Last year, my Conservative MP colleague Ed Fast, introduced Private Member’s Bill C-314 to exclude mental illness from the assisted suicide regime. Sadly, the vast majority of Liberal MPs voted against it. In fact, they voted it down at second reading so the bill would not even be studied at committee.
Only a Conservative government led by a prime minister Pierre Poilievre will repeal this mental illness expansion on assisted suicide. We have committed to this when we become government. For the country’s sake, I hope that’s soon. But I can assure you of this: That will be a matter of not if, but when.
Honourable senators, this issue is as clear as day. Either you are on the side of people living with mental illness or you are not. Assisted suicide should never be extended to Canadians on the sole basis of mental illness. We need to put the brakes on this runaway train before it’s too late. The Canadian public is not ready, medical practitioners are not ready, the provinces and territories aren’t ready. Please join me and vote to pass Bill C-62 to help protect the lives of vulnerable Canadians living with mental illness.
Thank you.
Honourable senators, I want to take a few minutes to give voice to a few Canadians who have written to us on Bill C-62 from various perspectives.
I will start with a letter from Jane in Ontario. She writes a personal and pointed letter:
I am a 75-year-old woman, and I have suffered for decades with a new psychiatric diagnosis called “Complex PTSD”. This diagnosis usually stems from childhood traumas, never acknowledged or resolved, followed by a series of traumas throughout life which layer and layer, and become interlocked by triggers (an instantaneous negative psychological and physical repulsion).
. . . my condition is irremediable and my MAID application, with 50 years of psychiatric records (1500+ pages) of no trauma treatment until 2020, would be approved by trained, MAID Psychiatric Assessors. I suffer flashbacks, nightmares, triggers and sobbing every waking minute; medications dull the avalanche of past horrors for half an hour.
I have received excellent trauma treatment since 2020 . . I have unburied layers of traumas.
Those who have served at the parliamentary committee level have heard from experts that Canada is ready for this change in law, and from a handful of people like me who live with treatment-resistant, intolerable mental pain and suffering. Now the government is proposing a 3-year delay; how many Parliamentarians spoke to someone with lived experience like me before making this decision? I don’t know of one.
I do not want to plan a suicide. I simply have a desire to end my tragic life, Which has never been and never will be meaningful, productive or joyful-with dignity. I want the choice to have a peaceful death with my loved ones by my side. Please allow me this last personal freedom.
Next, a letter from multiple constituents addressing their views that mental illness is no less real than physical illness:
Dear Andrew Cardozo,
I write to you today, as a constituent and as an advocate for end-of-life choice, to renounce Bill C-62 . . .
Suffering caused by a mental disorder is no less “real” than suffering caused by a physical illness, injury, or disability. In many cases, symptoms of a mental disorder are indistinguishable from those caused by a non-psychiatric medical condition. 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 a treatment-resistent mental disorder should have the same right to autonomy and choice as individuals with grievous and irremediable physical conditions. They do not need to be told what’s best for them — they want the right to make their own choices.
Depriving someone of their legal and constitutional rights is a serious matter and has gone on for long enough. I support MAID for individuals whose sole underlying condition is a mental disorder and do not support the passage of Bill C-62.
Next, I’ll briefly read a letter from Matthew:
I’m severely mentally ill from treatment-resistent depression. I can’t work because of it. Suicide is a terrible thing to go through both as the victim and everyone else around who are involved. Including emergency personnel. I’ve struggled with depression for many years personally and have had friends who have as well, one in particular who was my best friend died by suicide a few years ago with no warning.
One major thing to consider is the manner in which non‑medical suicide is conducted. . . .
I’m here to advocate for a dignified death. I don’t think anyone should have to die alone and be put through the pain and unpredictability of any non medical way of ending their life.
Next, I want to read from a letter from Val, who is in favour of Bill C-62:
I am so happy and relieved that the Joint Committee studying MAiD for Mental Illness was willing to hear what Canadians were saying and concluded that we cannot in good conscience expand assisted suicide to those with mental illness.
I understand that there is now a Bill C-62: to Delay Expansion of MAiD to the Mentally Ill.
I respectfully ask you to pass legislation in response to Bill C-62.
This is a very personal issue for me.
Please do all you can to delay MAiD, or completely eliminate MAiD for those with Mental Illness.
Last, I want to read briefly from a letter that we have all received, signed by 127 physicians and nurses who say:
We are writing to you as physicians and nurse practitioners to express our concerns about Bill C-62 which will result in the continued exclusion of patients with mental disorders as their sole underlying condition from applying for MAiD.
When Bill C-7 came into force, mental disorders were excluded for two years to give governments and MAiD assessors and providers the time to put in place the processes to assess MD SUMC requests. That exclusion was to expire in March 2023, but was extended an additional year with a set of metrics to measure readiness. All metrics have been met, as was demonstrated before the Special Joint Committee of the House and Senate on Medical Assistance in Dying (AMAD). The Committee itself did not dispute this.
In closing, colleagues, I want to say that my approach to this issue is that there is no right or wrong answer, or right or wrong position to take, but I also completely respect those who believe there is a right or a wrong on either side of this debate.
Colleagues, thank you for listening. A special and sincere thanks to all Canadians who have written to us. This is one of the most difficult issues we have had to address as Canadians and as legislators. Thank you.
Honourable senators, I rise on behalf of our colleague Frances Lankin, who is not able to be here, and I will say a few words that she has asked me to express on her behalf. I would like to add a few comments after that with respect to my own views and experience.
Senator Lankin first asks me to thank colleagues for including some thoughts from her on the record at third reading of Bill C-62:
I can’t be in the chamber but have been following Senate debates all week. Thank you to all colleagues for what has been a very thoughtful and important discussion.
Most of the issues I would like to speak to if I could be there in person have been explored from many perspectives by others. I won’t repeat those things. I want to add my voice in support of this bill from my own personal and professional perspective as a former provincial Minister of Health and as a member of this chamber of our bicameral Parliament.
While the various expert opinions — which, in this case, are split — provide evidence-based advice to the development of public policy, the final decision on what public policy will be proposed, how and when that policy is implemented and the other considerations that must be taken into account falls in the end to ministers, governments, legislatures and Parliament.
The final step is and should be an exercise in democratic governance, which includes the requirement to respect collaborative federalism and federal-provincial-territorial, or FPT, jurisdictional realities. I support the FPT assessment that a three-year extension before the provision of MAID comes into effect is in the best overall interests of Canadians and responsible law-making. I understand from first-hand government and legislative experience the considerations that are before ministers.
The second perspective I bring to this is as a member of this institution and a structured consideration of the scope of my role as a senator. Whatever our individual preference regarding the proposed bill is, we must always consider the role of the Senate in our parliamentary system. A bill that passes the democratically elected and accountable chamber — in a minority government to boot — must be treated with considered respect and appropriate deference. For many reasons, I support this bill, and I urge colleagues to do the same.
That is Senator Frances Lankin.
Colleagues, I enter this debate somewhat reluctantly, frankly because of my recent personal experience, but I also do so in some respects because so many senators missed the debate eight years ago. For those of us who were here eight years ago, it has to be the most important public policy debate I have been a party to in this chamber, and if you read the record, the one in which I believe the Senate rose to insightful debate. We learned from each other and reached amendments to the bill that was before us, which we sent to the other chamber.
The other chamber considered and accepted some amendments, but not all. I want to read to you the words of the then-government representative when the message came from the other place:
Honourable senators, I do not propose to speak long because we have, over the course of the last two and a half weeks, debated extensively the matters before us, and we all understand the situation that we now face with a message from the House of Commons. I think it is important for me to say a few words with respect to where we are with the message and the motion that I have tabled.
I believe that the Senate has done its work. We have, through the exercise of debate and the work of the Senate, engaged Canadians on the issues involving Bill C-14.
We have, through our amendments, perfected the bill to a great degree and provoked, in the other chamber, yet another debate of reflection, and in the broader public, a debate with respect to the amendments that we made.
This is the role of the Senate, to provoke, to inquire, to make recommendations for improvement, to urge the government to consider our reflections.
The role of the House of Commons and the government is to consider the recommendations that we have made, to take seriously the amendments and the views of the Senate, and I believe they have done that. They have done that in a respectful fashion, by seeking to accommodate and engage the other chamber with respect to the amendments that have been brought forward.
That is their role. They are the representatives of the people, and the government will be held accountable for the implementation of the bill that, hopefully, this chamber will conclude later today is worthy of Royal Assent.
I reference this because this is not a debate that has come to us only in the last few weeks. It is, in a sense, a conversation this chamber has had with the other chamber for the last eight years. In the last iteration, we made recommendations to the other chamber, which they accepted, and now, on reflection, are saying, after consultations that we envisaged they would engage in, that the system is not ready.
I think it’s important for us institutionally to understand our role and the restraint with which we should exercise our judgment. I want to quote not from the previous Government Representative but from our former colleague Ian Shugart. It was his first and last speech, but it is worthy of reflection where he spoke of restraint. This is from June 20, 2023:
. . . we have the seeds of constitutional crisis. An essential ingredient in avoiding or resolving such a crisis will be the practice of restraint. Our Constitution is black-letter law and convention — practices developed over decades and centuries, in which the instinct to exercise raw power is restrained for the common good. Absent restraint, the convention that the Senate’s duty is to scrutinize, amend and pass legislation — balanced against deference to the chamber that most directly reflects the will of the people — is incomplete.
In other words, colleagues, I believe that the bill before us and its passage, which I endorse, would be an appropriate exercise of the Senate’s role that is deliberative and respectful, but is ultimately one of restraint. I would encourage you to adopt this bill.
