Honourable senators, the Senate is resolved into a Committee of the Whole on the subject matter of Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).

Honourable senators, in a Committee of the Whole senators shall address the chair but need not stand. Under the rules the speaking time is 10 minutes, including questions and answers, but, as ordered, if a senator does not use all of his or her time, the balance can be yielded to another senator. The committee will receive the Honourable David Lametti, P.C., M.P., Minister of Justice and Attorney General of Canada, and the Honourable Jean-Yves Duclos, P.C., M.P., Minister of Health, and I would now invite them to join us, accompanied by their officials.

(Pursuant to the Order of the Senate, the Honourable David Lametti, the Honourable Jean-Yves Duclos and their officials were escorted to seats in the Senate chamber.)

Ministers, welcome to the Senate. I would ask you to introduce your officials and to make your opening remarks of no more than five minutes combined.

Thank you, Madam Chair. I am pleased to have the opportunity to speak today to Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), which I introduced in the other place on February 2, 2023.

As you know, I am joined here today by my colleague the Minister of Health, Jean-Yves Duclos; Joanne Klineberg from my department — she can wave — Deputy Minister Stephen Lucas, Health Canada; and Jacquie Lemaire from Health Canada.

Madam Chair, Bill C-39 will temporarily extend the period of ineligibility to receive medical assistance in dying — or MAID — in circumstances where the only medical condition identified in support of the request is a mental illness, and this is for one year — until March 17, 2024.

I sincerely believe that extending the period of ineligibility due to mental illness by a year is necessary. This temporary extension will ensure proper MAID assessment and safe delivery under these circumstances. The delay will enable us to properly prepare the health care system by giving us more time to distribute and activate key resources and provide adequate training within the medical and nursing care communities.

This extension will also give the federal government more time to carefully examine the final report of the Special Joint Committee on Medical Assistance in Dying, which was tabled just three weeks ago on February 15, 2023.

The comprehensive and detailed report contains recommendations and additional clarifications pertaining to MAID assessment and delivery when the sole underlying medical condition identified in support of the request is a mental illness.

The Minister of Health, the Minister of Mental Health and Addictions and I are carefully considering these conclusions. We remain committed to working with our provincial and territorial partners to ensure that our MAID laws respect autonomy and freedom of choice while protecting the most vulnerable.

I want to be very clear. Bill C-39 is not a step backwards in terms of the potential eligibility for MAID where the sole underlying medical condition for the request is a mental illness. Two years ago, legislators — including those in this chamber — decided that eligibility for MAID should be expanded in this direction, and that is not something I intend to change. That is not what Bill C-39 is proposing.

However, I do believe that more time is needed to ensure that MAID is being safely assessed and delivered in all circumstances where mental illness is the sole underlying medical condition.

The one-year temporary extension will strike the right balance between expanding eligibility for MAID as quickly as possible and ensuring that it is done in a careful and measured manner. I am confident that one year will be sufficient for the dissemination and uptake of key resources by the medical and nursing communities, to ensure that the health care system is ready.

During that time, the federal government will be carefully considering important reports such as the one from the Special Joint Committee on Medical Assistance in Dying.

I will now be happy to answer your questions.

Thank you.

Thank you, minister.

My questions will be for Minister Lametti, starting out, at least.

Minister, I am really saddened to hear your comments telling us that even if over the next year you find reasons why this is entirely the wrong way to go that you wouldn’t have enough of an open mind to say that we are always open to changes, always open to do the right thing — that you have already made a decision. Regardless of what information you get over the next year, you’re not going to change course.

Minister, there is no expert consensus on whether expanded assisted dying to those suffering from mental illness as a sole underlying condition can be done safely. The Special Joint Committee on Medical Assistance in Dying heard from several renowned psychiatrists who have stated unequivocally that there is no way to ascertain irremediability and no way to distinguish between suicidality and assisted dying requests with any certainty.

Minister, the latest survey from the Canadian Psychiatric Association demonstrates that less than half of Canadian psychiatrists support expanding access to those suffering from a mental illness. The Ontario Medical Association survey demonstrates even less support among medical professionals.

Minister, when there is absolutely no professional consensus among experts that this can be done safely, why would your government even consider continuing with this radical expansion? Why not listen to the experts and abandon this policy altogether, especially given that the consequences of getting this wrong are so dire?

With all due respect, senator, I disagree on most counts.

First of all, this is a law that has already been passed. We are only temporarily delaying its implementation. It would be disrespectful to both houses of Parliament, but this honoured house in particular, Senator Plett, to turn around and reverse exactly what it did only two years ago, considering the expertise shown by the committee in this house.

I would also dispute quite vigorously your assessment of the expert evidence that is out there. The expert committee that looked at this gave us a very good set of guidelines that are not just workable but, I think, extremely effective at making sure that the only kinds of mental disorders that are eligible for MAID are those for which there’s a long-standing path of care with a psychiatrist and in which all sorts of things have been tried and have failed. It’s a very small number of people.

So there is a great deal of disinformation out there, and a number of the reports and surveys to which you are referring, I would put to you, with all humility, that they —

Minister, I —

If you don’t mind, let me answer the question.

Senator Plett, let the minister answer the question, please.

Minister, I have 10 minutes to deal with what I want.

I would put to you, please —

You asked a question; the minister is responding.

I will complete the answer, senator.

A number of the studies you are referring to are based on that disinformation: that this is about allowing MAID for suicidal ideation. That is clearly not the case here. These are cases of long-standing psychiatric disorders that have been under the care of a psychiatrist.

Senator Plett, we’re at four minutes. You have one minute left, if you want to share five minutes with Senator Batters.

Again, Madam Chair, we will share our time the way we deem to share our time. When I am done, she is the second or third on our list later on, and she will take the balance of what I don’t use. Thank you.

Minister, I’m sorry to hear you say that a small number of people is acceptable if we get it wrong. I don’t think it is; I think one person is too many.

Minister, I want to discuss the concept of irremediability. Our entire assisted dying regime is founded upon the principle that the qualifying illness must be grievous and irremediable, as stipulated by the Supreme Court. To suggest there is a scientific consensus on the ability to predict a mental illness would be grossly misleading. Several witnesses told a joint committee that this is not possible. Dr. Sonu Gaind, the former President of the Canadian Psychiatric Association, told the committee:

. . . our law does not say grievous and irremediable conditions are determinable by ethical decision. It should be a scientific decision. On that there is no question that we cannot make those predictions in mental illness.

Even your government’s expert panel stated in their report that it is difficult, if not impossible, for clinicians to make accurate predictions about the future for an individual patient.

My question, minister — and give a short answer, please — is this: When it comes to irremediability, clinicians would not know if they are getting it wrong 2% of the time or 90% of the time. What percentage would be acceptable to you, minister, and if the only two safeguards of “grievous” and “irremediable” cannot be guaranteed, what value is there in the other safeguards?

Senator, before turning the answer over to my colleague Minister Duclos, if the expert committee has given us a good road map on irremediability, and if there is any doubt as to irremediability, the person is not eligible for MAID.

Thank you for pointing to the expert panel. I will summarize what they said.

The expert panel made several recommendations for MAID assessors to guide them in making a determination of incurability for persons suffering solely with a mental illness. This includes reviewing treatment attempts and their outcomes and the severity of the medical condition. They also recommend that assessors obtain collateral information, such as medical records, prior MAID assessments and discussions with family members or significant others. As with many chronic conditions, the incurability of a mental disorder cannot be established in the absence of multiple attempts at interventions with therapeutic aims.

In terms of the irreversibility of a mental illness, the panel indicated that MAID assessors should establish irreversibility with reference to interventions tried that are designed to improve function, including recognizing rehabilitative and supportive measures that had been tried up to that point, outcomes of those interventions and the duration of decline.

Finally, as Minister Lametti said, if assessors cannot establish irremediability, a person will not be found eligible for MAID.

I will yield the balance of my time to Senator Batters when it is her time to come forward.

Minister Duclos, in the 2021 election, your Liberal election platform promised to establish and fund the Canada mental health transfer — a commitment of $4.5 billion over five years. According to your own platform cost breakdown, your government should have invested $1.5 billion of that money into mental health care by now, but, in reality, you haven’t spent one penny.

Canada’s mental health care system is in full-on crisis mode. Canadians with mental illnesses face waitlists of months, even years, for psychiatric treatment. Now the Trudeau government is going to offer assisted suicide to vulnerable people suffering from mental illness who feel as though they have no other options rather than investing in and offering them treatment or hope.

Why is your government breaking this major commitment on mental health? Why is your government offering Canadians with mental illness death before treatment?

In fact, not only are we not breaking that promise, but we are enhancing it. You have probably followed the recent announcement made by the Prime Minister just a few weeks ago in a subsequent letter pointing to agreements in principle on the part of most provinces and territories — 11 out of 13 of them — with an additional investment of federal dollars of $200 billion over the next 10 years. Those are in addition to the current level of the Canada Health Transfer and tax points transferred to the provinces and territories for the last decade.

Those are very significant dollars.

In particular, this means $2.5 billion per year over the next few years, which is obviously significantly larger than the number you mentioned earlier. Those dollars will be invested, in part, through better access to mental health care, because we know that mental health is health. It is also in part through better access to primary care, because primary care for most Canadians listening to us is the direct access to mental health care through psychologists, psychiatrists and social workers.

Those are significant investments. More importantly, we expect they will lead to significant health care and mental health care outcomes for Canadians.

Ministers, thank you for being here with us today. Your presence is appreciated.

Health misinformation has become a substantial concern since the onset of COVID. Have you, in your work, noticed any frequently promoted misinformation related to MAID MD‑SUMD, and, if so, what has been the focus of that misinformation and what is being done to address it?

Thank you for that, senator. It’s fair to say that we’ve heard some already. The main example of misinformation in this particular case is that a person who is contemplating suicide or who is depressed or anxious will have the option to have MAID. That is simply not the case.

The guidelines given by the expert report, again, point to a situation where the typical person accessing MAID, whose sole underlying criterion is a mental disorder, would be someone who has been under the treatment of a psychiatrist for a long period of time — years, possibly even a decade or more — and for whom every type of possibility has been tried, the person is capable of making a decision and decides to make that decision.

If a person is in acute crisis or is contemplating suicide, that person should seek help.

As Minister Duclos just pointed out, we are trying to work with the provinces to make sure we augment those kinds of services, but it’s simply not an option that one can get MAID if one is feeling depressed, anxious or is contemplating suicide. That is the kind of argument that is being made, I believe, for mainly ideological reasons or to turn back the whole of the last series of reforms on MAID, so there is a political agenda to it as well.

The expert committee has given us a very good road map with which to work. What we’re doing is trying to present real information, factual information and to give provinces, territories and universities the time to digest that information in the expert report, to develop the kinds of modules and didactic materials that are necessary so that we are all on the same page a year from now at the very latest.

To both ministers, thank you very much for making time to meet with us today.

Minister Lametti, as you know, for many years, we have told you that you have broken the record for ministers giving gender-based analysis reports. I wrote to your office before you came here to ask if this will be produced. Do you have it here or will you be producing it later?

I do have a copy here, but it will be produced with the caveat that it will be similar to the GBV analysis.

The motion the Senate approved was very narrow and specific for today’s Committee of the Whole. It is on the topic of Bill C-39. Any other question should be ruled out of order. I’m prepared to go into the mind-numbing details of the rules if required, but otherwise we should stick to the topic before us.

I agree with you, senator. Please, honourable senators, keep your questions to the issue at hand, specifically Bill C-39.

This is an issue for Bill C-39 in order to see how the bill was put through. So I think I am on topic.

Okay.

Minister, in the last bill, we had talked about the different data that was collected for race and disability — the whole list. Is a similar thing happening now, and how is it going to be applied in the future?

Minister Duclos may want to elaborate on this answer, but that data is now beginning. As of the beginning of January, we are beginning to get better data as a result of Bill C-7. Hopefully, that will increasingly put us in a better place with respect to the kinds of information and the disaggregated data that we gather with respect to MAID.

Precisely that. The data is improving in quantity and quality over time. One reason for that is that on January 1 new regulations were passed and are now in existence so that more data on who, how and why can be accumulated for MAID: disaggregated data including gender; disaggregated data on how MAID is administered, the process leading to refusals and to ultimate outcomes; and the underlying factors, including medical factors, that may be leading to MAID being requested and sometimes offered.

Welcome, ministers. My question is for Minister Duclos. There is some concern that medical assistance in dying outside the end-of-life context may become too readily available to those suffering from mental health disorders, especially if they have not had access to all available care. Can you confirm that health professionals, especially psychiatrists, agree that incurability and irreversibility should be central to their psychological assessment of eligibility? How do you envisage standardizing these two criteria?

Thank you. There are two pieces of the answer to that question. First, as I mentioned earlier, if assessors cannot establish irremediability or incurability, MAID cannot be obtained. Second, an additional condition to obtaining MAID is that all relevant and sufficient support, socially and medically, must have been provided throughout a sustained amount of time.

We know that there have been concerns, sometimes perhaps ill-informed, but overall legitimate concerns about what would happen if someone didn’t have access to housing or to mental health care. If that is the case, those individuals cannot obtain MAID, because we need to help them and provide them with all the support — the housing support, income support, social support and medical support — that they need and deserve to live fulsome lives. That’s the brief answer I would provide to your important question.

Thank you for that answer. I would like you to elaborate, given what we are hearing — and there is a lot of misinformation and disinformation — but I recognize that there is some disagreement amongst the medical profession. Can you elaborate to what extent we can say that they will eventually agree that this is a necessary bill?

One of the reasons assessors and experts acknowledge that it’s difficult to assess irremediability is that people are very different from each other. This must be assessed on a case-by-case basis. As we said, and as I think needs to be repeated all the time in order to stop some of the misinformation, if irremediability cannot be assessed for certain for a particular case, that person will not be eligible for MAID. When psychiatrists and others point to the fact that it is sometimes difficult to assess irremediability, that is true, but if it cannot be assessed or checked, that person will not receive MAID.

Thank you, Senator, for this very important question.

Clearly, these are moral and ethical issues that are often very personal and difficult to address. The pandemic slowed the implementation of the legislation. We enacted the law two years ago. At the time, we believed that we would have enough time to develop a framework for the law with respect to mental disorders.

The Expert Panel on MAID and Mental Illness did an excellent job, but the creation of educational modules and materials in universities — in the faculties of medicine across Canada — was slowed by the pandemic, among other things. We thought that it was more prudent to slow down the process to provide the time required for everyone to be on the same page.

It is a process. We are moving forward step by step with Canadians. We are moving forward at the same pace as Canadians.

Obviously, this delay proposed by Bill C-39 has, for many, created an opening to attempt to relitigate access to MAID for those who are not suffering from a mental illness. Do you have a plan? Will you be more public? Will you be more proactive in support of MAID? What assurances can you offer the public that the delay proposed by Bill C-39 will not impact access for the hundreds upon hundreds who are waiting for a clear signal?

Thank you for the question. I would add to the earlier question that some experts believe that we could have moved this March with the extension that was passed two years ago. However, because of the prudence that my colleague alluded to; because we just received the reports from the parliamentary committee on MAID a few weeks ago; because we wanted to give more time to people to access the curriculum which will be completed — it’s already in a good draft format and will be completed in 2023 — we also wanted the standards of practice to be well known and easily accessible. These standards will be available in the next few weeks. Since we want both the regulations and the information about those regulations to be increasingly available, we thought that one more year would be appropriate.

It is correct to say that this is a work-in-progress. People who have been suffering for many years are listening to us now and they probably feel challenged by the fact that this is not moving as quickly as some would have liked it to move.

First, Senator Wallin, thank you for your work on this file. I agree with you that a number of people will be disappointed by this, but we do feel this is the prudent way forward. We’re not backing down on anything else.

The statistics that are beginning to be generated are showing that the vast majority of cases are end of life. I think the statistics I saw were 500 non-end-of-life cases out of 10,000. That’s a fraction of a percentage point. With better and disaggregated data, I think we will be able to assure Canadians who might be skeptical about MAID, and who might be prone to listening to disinformation, that what is really the case is empowering the autonomy of people to live with dignity and die with dignity under certain circumstances and conditions. This is only a one-year delay and we’re not backing down on anything else.

On the COVID point that you raised, rather than suggesting it was reason for delay, COVID allowed the system to open up so that people could use technology to communicate with one another.

Can you ensure that kind of access to people looking for advice and for guidance or for MAID assessors can begin so that process can continue to use technology?

Yes, there has been significant progress in COVID-19. Obviously, I don’t want to suggest that COVID-19 was good. It came with enormous damage not only to our health care workers but also to patients who have been waiting for years for surgeries and diagnostics. Perhaps one good thing, as you noted, was a significant increase in access to virtual care and the use of digital health and technology to improve the quality and the safety of care. We believe that access to information overall — that access to technology in particular — will be supportive of all sorts of care, including palliative care, home care, community care, access to medical aid in dying and, fundamentally, primary care, which is the weak cornerstone of our health care system now in Canada.

I would like to return to the notion that I raised initially about a campaign. We’ve had this discussion in the past. Every caregiver, every MAID assessor and people who deal with the issue of mental illness in particular, but not exclusively, have said we need to have a much more public debate about this. Others have suggested that the government has been less than proactive and less than outspoken on this issue. To come back to that issue, could we see more leadership on this issue, not just from ministers such as the two here today but from the government in general?

Thank you, senator. I think that point is well taken. I share some of those thoughts. Working with Minister Duclos — and I see Deputy Minister Lucas behind me — working with the information and working with these people, I think we will accomplish that.

You still have one minute.

I will forfeit my remaining time. Thank you.

Thank you, Minister Lametti and Minister Duclos for being with us for this important debate. I have two questions for you.

My first question is this: When the government decided to ask for an extension, did you think about a shorter extension, one of six months, for example?

Thank you, senator, for the question. The short answer to that is yes. As Minister Duclos has mentioned, the group of experts led by Dr. Gupta felt that we would be ready to go later this month. However, questions were raised by certain medical faculties across Canada and by other groups, provinces and territories, who said they weren’t. Both Minister Duclos and I had a number of different discussions, including with senators in this honourable place, as well as parliamentarians and experts across Canada, regarding six months or nine months. At the end of the day, it was felt that a safe period of time, to be perfectly honest, was six to nine months. We have gone with a year to be safe, to ensure that everyone is on the same page and we’re prepared as a country to move forward with this next step at the same time — that is, the medical profession, the provinces and the territories. This will give us an adequate amount of time to really be ready together.

My second question is perhaps a bit more philosophical. I ask this from the perspective that when it comes to MAID, I think there is no right or wrong answer. We must respect everyone’s perspective. We all get letters, as parliamentarians, from Canadians who are desperate that there not be a delay. We also hear from people who feel that MAID should be scrapped altogether. I ask you to help us with this. It’s a struggle for us as lawmakers. What do you say to us and to people who seriously do not want this delay?

You are right. It is a very intimate, difficult and complex issue that people take very personally.

Obviously, by definition, all life and death issues are central to human life. It is understandable that we are divided, at least at first, when we think about these issues, particularly in a society that continues to evolve. More and more, people want to enjoy a certain quality of life while maintaining a certain amount of independence. They also want their choices to be respected, no matter what choices they want to make in life. These are sometimes choices about their personal identity, their religious and other beliefs, their lifestyle or the way they want to end their life. We all know that life will end one day, in one way or another.

There are very personal and very difficult questions that you are carefully considering in this chamber. The work that you are doing is not easy. It is similar to the work that was done in the other place, that of trying to bring together people and perspectives that, at the beginning, almost by definition, are very far apart.

That’s why I would like to encourage you to continue. I’m thinking of all the members of Parliament and the senators, in particular, who served on the committee. I’m thinking of Marc Garneau, the committee chair, who announced his departure today. Marc delayed his departure from politics until today. He could have left sooner. At his age and after giving so much to Canada, he could have left us sooner, but he told me at the Quebec caucus meeting this morning — David was there too — that he wanted to see this through. He felt that the work he did with some of you here in the Senate was important, and he wanted to see it through.

Regarding the extension you’re asking for in Bill C-39, what will your government do in the meantime to relieve the suffering of people with mental illness? For example, will you grant more section 56 exemptions and provide meaningful access to MDMA- and psilocybin-assisted therapy?

Thank you for the question. My heart goes out to those who are suffering and who were looking forward to March 17, 2023. I want them to know that I sincerely sympathize with what they are going through. Honestly, we have no temporary measures in mind. This is just for one year. I know that some people will continue to suffer for that year, and again, I’m concerned about that, but I believe we need certainty that the law truly can be implemented in a year. In the meantime, we have to focus on implementing the law.

That’s all, thank you.

Welcome to the Senate, ministers. I understand why some people are concerned. By allowing access to medical assistance in dying for mental illness, Canada is moving in a direction that is not common throughout the world, but there are countries that do allow it, such as the Netherlands.

Professor Donna Stewart from the University of Toronto testified before the special joint committee of the House of Commons and the Senate that she had studied the last 20 years of Dutch statistics on access to medical assistance in dying for mental illness and she noted, for one, that in 2020, 95% of requests had been rejected. She also noted that those who accessed MAID solely for mental illness reasons represented 1.3% of the total number of people accessing medical assistance in dying. I assume that the government is aware of these numbers and that you expect that the experience in Canada will be similar. The reality is that it won’t be easy to access and the numbers will be low.

Yes, because the important thing is to take care of people. Protecting vulnerable people is the primary objective, the fundamental objective of everything the government does. We are fortunate to do what you do as well, and it is our objective in life to help people live a better life. That is why the purpose of all the conditions imposed on accessing medical assistance in dying is to ensure that the people have received all the necessary social, economic and medical support to live a full life until a natural end.

However, as you said, there are terrible circumstances where for years or decades, as Minister Lametti also said, people experience incredible and intolerable suffering, suffering that cannot be reduced, that is irremediable and is in no way alleviated by any form of treatment whatsoever. These people are absolutely capable of making that choice and can give clear and informed consent. These people want to be independent until the end of their life and it is in these rare cases that access to medical assistance in dying would be granted and will be granted in Canada, as is the case in other countries that are already doing this.

Recommendation 13 of the special joint committee’s report stated that, five months before March 2024, the committee should be re-established to ensure that the required measures have been put in place, that the provinces and territories are ready and the training and guidelines are ready. Do you agree with this recommendation?

We just received the report and naturally have read it. I thank Senator Martin, our honourable colleague, Marc Garneau, and all the members of this committee for their work. I have to say that, personally, I’m not against this recommendation. As I just pointed out, I’m certain that in six or seven months, we will be in a good position for the committee to review this issue.

Minister Lametti, your own gender-based analysis for Bill C-39 is devastating. It shows that women will be disproportionately adversely affected by the expansion of assisted suicide to people with mental illness. It notes:

It can be expected that 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.

It also notes that it can be expected that controversial MAID deaths similar to those seen in Benelux countries “. . . would emerge in Canada under this option.”

The analysis notes that, currently, men are three times more likely to complete suicide. But with access to assisted suicide — a 100% lethal means of suicide — women may even those odds. That’s hardly the kind of gender parity that we want.

Minister Lametti, on International Women’s Day, please tell us why, with all of these dire warnings, your government is putting Canadian women at risk by pushing ahead with this expansion of assisted suicide.

Thank you, senator, for the question. I appreciate the very good place from which your question comes, and the sincerity with which you are posing it.

As my colleague Minister Duclos pointed out, the experience in Benelux countries has been a very tiny percentage of people who seek MAID with the sole underlying criteria of mental disorder or mental illness. We expect that to be the case here. The guidelines that will be put into place — which have been recommended by the expert committee — are very strict. They will not allow for a large number of cases to be accepted.

As for the difference between men and women, we’re putting stress on the autonomy of the individual here — where the criteria have been met, and where the criteria can be met. In the tiny number of cases — the fractional number of cases — where someone meets that criteria, we are empowering the individual to choose to not suffer anymore if that’s what they want. We think that’s an important part of it.

But these are difficult situations, as you know.

Minister Lametti, as you have tried to sell the concept of psychiatric MAID to the Canadian public, you have, occasionally, implied that extending assisted suicide to people with mental illness has been mandated by the courts. Minister, as you know, that is not correct. You recently received a substantial letter on this matter from many notable Canadian law professors — and they stated that neither the Carter case nor the Truchon case ruled on the constitutionality of expansion for mental illness, and neither plaintiff requested MAID based on psychiatric grounds.

Minister, if the courts have not required the expansion of assisted suicide to people with mental illness, and science cannot prove that mental illness is irremediable, why are you and your government so determined to forge ahead with it?

Thank you for the question, Senator Batters. I know most of the people who signed that letter personally, having been a law professor for most of my adult life.

In 2016, I felt that the original MAID package was unconstitutional because it did not allow for access to MAID in a non-end-of-life scenario, and, sadly, the Truchon case pointed out that I was correct.

While you are right that neither case — Carter nor Truchon — studied the question of mental illness as a sole underlying criterion directly, I do feel that eventually we will get there, as happened in 2016. That was certainly the opinion of many senators in this honourable place two years ago, and it was one of the reasons why this particular institution pointed us in that direction with the old Bill C-7.

I’m pretty confident, senator, that we’re moving in the right direction in accordance with the principles underlying the Charter, and I think it’s important that we empower Canadians who meet the criteria to have access to the possibility to end suffering.

Senator Batters, you have 30 seconds.

I will yield my time to Senator Martin.

Minister, you said there were questions raised by some schools, but I know for a fact that, in December, the chairs of all 17 schools raised those concerns in question. We have this one-year extension with Bill C-39, but one year is not a lot of time when you look at the vastness of our country, the jurisdictional challenges and the great disparities between rural and urban Canada. In spite of all the well-intentioned good work, I feel like we’re going to be back here in a year’s time looking at further potential delays.

Minister, the Canadian public is also expressing great concern. A recent Angus Reid poll indicated that more than half of Canadians oppose MAID for mental illness as a sole underlying condition.

Considering the fact that we don’t have consensus among the experts and that there is such a lack of support among Canadians, why would your government not table legislation to stop this expansion rather than simply delay it for a year? In fact, if the government is certain that we will eventually have a professional consensus that would justify this expansion, why not table legislation if and when such a time arises? I just feel one year will not be enough.

I would start by saying that there are some people — and you have heard from them — who believe that we would be ready by the end of this month. The reason for that is because substantial work has been done over the last two years, partly thanks to your own work and the work of many other experts.

I would add that, as a federation, we know that provinces and territories will not always be exactly on the same page on every matter of health care and health in general. That is all right because in a federation we need to respect the level of heterogeneity and the responsibility that needs to exist with provincial jurisdictions.

That being said, this is a very prudent path. If provinces are not ready, they don’t need to move forward. If people are not eligible, they will not have access to MAID. The criteria to access MAID are very strong and strict, involving, in part — as I mentioned earlier — irremediability. People will not be able to obtain MAID if the following cannot be certainly assessed: an irreversible state of decline, advanced and progressive decline, unbearable suffering and informed and continuously informed consent.

These are strict criteria that are there to protect the most vulnerable, as you rightly point out, which we should always be mindful of and working towards.

Again, there are some who believe we are ready now. We will be even more ready in the next few months with the upcoming curriculum, which are the standards of practice that will be issued in a few weeks from now along with the regulations in place and input from your work and the work of the parliamentary committee of which many senators contributed to in the last year.

The provincial differences are something that also came to our attention at the committee.

Speaking of provinces, the National Assembly of Quebec, after wide consultation, tabled Bill 11 and ultimately decided not to allow MAID for mental illness. The government acknowledged the lack of professional consensus when asked about this decision.

How will this work logistically? If the eligibility criteria is narrower in Quebec, what set of criteria will Quebec clinicians have to follow? How will you prevent mental health patients from doctor-shopping across jurisdictions?

Thank you, senator, for that question. First of all, we’re following the legislative process in Quebec carefully, and we will wait to see what the final bill looks like after the legislative committee and all of the various steps of the legislative process happen.

What we do at the federal level is we work with the criminal law and establish the parameters, if you will, of responsibility. There is a certain margin of manœuvre that a province can have, as Minister Duclos has pointed out, with respect to what they choose to implement. They may not immediately choose to implement the mental disorder possibility as a sole underlying criterion for MAID.

Let’s wait to see what the final outcome of that legislative process is. There will certainly be information. There is an interest for both the federal and provincial governments — in this case, Quebec — to harmonize regimes as best as possible in order to ensure that health care professionals in particular are clear that they are following the law and working within legal parameters.

Minister, welcome to the Senate.

As you said, minister, medical assistance in dying is a very serious issue. The Standing Senate Committee on Legal and Constitutional Affairs, of which I am a member, considered the matter very seriously and heard from a significant number of witnesses during its study of the bill. The autonomy of the individual who is making such an important decision and his or her capacity to make that decision are two underlying principles of what is now in the Criminal Code governing this medical practice. That is why I think it’s urgent that your government move forward and consider the possibility of allowing individuals to formulate advance directives. This would enable individuals to maintain their autonomy and dignity before illness takes away their ability to make decisions.

You said earlier that you had two reasons to request delaying the coming into force of eligibility for MAID in circumstances where the sole underlying medical condition is mental illness. Giving more time to establish procedures and safeguards is one thing. What worries me — and I would like some clarification from you on this, Minister of Justice — is that you said your government needed more time to examine the report submitted by the Special Joint Committee on Medical Assistance in Dying, a committee made up of members of the House of Commons and the Senate.

That report addresses at least five different subjects, including mental disorders. Are you saying that the delay you are asking for, the one-year extension before this part of the law comes into force, will enable the government to examine just the part of the special joint committee’s report that deals with mental disorders or will you also consider the issue of mature minors and other subjects? Do you think one year is enough? Could you specify how long the government needs to review the report? Are you talking about the time required to examine only what the report has to say about mental illness and MAID?

Thank you for the question. The report we just received from the Special Joint Committee on Medical Assistance in Dying did cover several subjects. The one-year extension we’re requesting would be used to study just the issue of mental disorders. Of course, we will also consider the report and its recommendations. As for the other subjects, there will be well-established processes. The government will provide a formal response to the report, and after discussions, all that could lead to other steps.

I know that many people in this chamber, in the other place and in Canadian society would like advance directives to be available for such cases. The vast majority of Canadians would like to have access to advance directives, and that subject was mentioned in the report and addressed in the Quebec bill as well.

We will —

Minister, we need to move on to Senator Boyer’s questions.

Thank you, ministers, for being here. During the Senate’s pre-study and study of Bill C-7, as a member of the Legal and Constitutional Affairs Committee, it was important to me to ensure our studies considered the viewpoints of First Nations, Métis and Inuit witnesses. It’s imperative that we do not forget what those witnesses told us.

How will Bill C-39 and the delay it creates be used to specifically address the community concerns around the inadequate provisions of culturally appropriate mental health resources and supports for Indigenous peoples, especially those with a disability?

Thank you for the question.

You’re entirely correct. Not only is mental health care inappropriately and, in some cases, unsafely and culturally inappropriately provided in many Indigenous communities, but mental health care is as well. There is a mental health care crisis in many Indigenous communities, impacting Indigenous peoples.

That is why, through Minister Hajdu’s department and with my assistance and the assistance of Minister Bennett, we are going to invest significantly more in supporting the mental health and the mental health care of Indigenous peoples, in part through the announcement that the Prime Minister made a few weeks ago, which was the $2‑billion additional investment in an Indigenous health equity fund. That will be directly supportive of the abilities and capabilities of Indigenous communities to invest directly, as they wish, in the mental health and care of their people.

The needs are immense and the traumas are significant, so we need to be there to support Indigenous peoples.

Thank you, minister.

I will pass to Senator Woo.

Thank you, ministers, for your presence in our chamber today.

I would like to go back to the question of irremediability, which is the triggering criterion for MAID. As far as I can tell, and I think you have confirmed it, there is no consensus in the medical community on the irremediability of mental illness. That means each request for MD-SUMC will have to be dealt with on a case-by-case basis. Regardless of the protocols being developed during this period of hiatus, that effectively means individuals with mental illness who seek MAID will gravitate to assessors who are inclined to agree that their condition is irremediable. Indeed, it is likely that all MAID assessors will be predisposed to the view that some mental illnesses are, in fact, irremediable because they wouldn’t be assessors otherwise.

What scope is there in the law for medical professionals who have knowledge of the patient but who are not part of the MAID assessment team to intervene in a MAID request because it is their professional opinion that the mental illness in question is not, in fact, irremediable?

I will speak generally to the safeguard before asking Minister Duclos.

In the so-called track 2, a second opinion is required from somebody not on the medical team or who is not giving care to the patient. That is there as a specific safeguard, and the expert report has elaborated on that.

I’m confident, again, that this will be a small number of cases requested in the grand scheme of things and an even smaller number of cases actually accepted for MAID. Perhaps Minister Duclos will add to that.

I have a list of eligibility mechanism criteria for MAID in front of me. I summarized some of them earlier when I spoke about irreversibility, irremediability and incurability, but the criteria are strict. As mentioned, they involve that the request should not be the result of external pressure; that it has to be informed consent, before and during the process; the requesters have to have a serious and incurable illness, be at an advanced state of irreversible decline in capability and of enduring intolerable physical or psychological suffering that cannot be alleviated under conditions the person considers acceptable; and then there are a strong number of safeguards for the process itself — a number of independent doctors and nurse practitioners, complemented by others, if they are not sufficiently well prepared or equipped to handle the request appropriately, with all sorts of other safeguards and mechanisms that, as you said, are there to protect vulnerable Canadians in a manner that is under the Criminal Code.

This is not a light matter for assessors and practitioners.

We have 30 seconds remaining.

What if the dissenting voice is a recognized medical professional who knows the patient but is not part of the assessment team or even part of the second opinion that is mandatory under the rules? Does that person have any standing to intervene in the MAID request?

That is all part of the fundamental criteria to be able to have access to MAID. It is under very —

I must interrupt you, minister.

We have two minutes left for a question and answer.

I’m going to ask that this be done in writing, since I don’t think they will have time.

Indigenous peoples have high rates of disability, mental illness, premature mortality and morbidity tied to intergenerational trauma and government policies that do not favour them. There is a different form of suffering that occurs when you’re scared of being offered death after generations of genocide.

Current evidence suggests we cannot predict when someone with mental illness will not recover; most do with the right care. Further, we are failing to provide timely care and supports, which can impact decisions to die, as we are already hearing about in cases of people and as I have heard from many people.

The message that death can be a solution to suffering from mental illness seems to fly in the face of suicide prevention efforts, and the Canadian Association for Suicide Prevention has been vocal about those concerns.

While I welcome a one-year pause, what will really change in one year if there is no room for reconsideration of the actual issues at hand for marginalized groups?

Minister, the senator asked that you respond in writing, so I would ask that you respond to this question in writing.

Honourable senators, the committee has been sitting for 65 minutes. In conformity with the order of the Senate, I am obliged to interrupt proceedings so that the committee can report to the Senate.

Ministers, on behalf of all senators, thank you for joining us today to assist us with our work on the bill. I would also like to thank your officials.

Hon. Senators: Hear, hear!

The Chair: Honourable senators, is it agreed that I report to the Senate that the witnesses have been heard?

Hon. Senators: Agreed.

Honourable senators, the sitting of the Senate is resumed.