Criminal Code

Motion in Amendment Adopted

February 9, 2021


Hon. Stan Kutcher
[15:38]

Therefore, honourable senators, in amendment, I move:

That Bill C-7 be not now read a third time, but that it be amended:

(a) in clause 1, on page 3, by adding the following after line 7:

“(2.1) Subsection 241.2(2.1) of the Act is repealed.”;

(b) on page 9, by adding the following after line 30:

“Coming Into Force

5 Subsection 1(2.1) comes into force 18 months after the day on which this Act receives royal assent.”.

Thank you. Meegwetch.

The Hon. the Speaker pro tempore
[15:39]

Let’s move on to the debate on the amendment.

Hon. Claude Carignan
[15:40]

Honourable senators, I rise in support of Senator Kutcher’s amendment. In the speech I made yesterday and the one I made in December, I spoke at length about how the provision in Bill C-7 discriminates against persons with mental disorders. Obviously, this will once again force the less fortunate and vulnerable to appeal to the courts to declare this bill unconstitutional. In fact, this bill will clearly be ruled unconstitutional based on Supreme Court case law.

We must avoid placing the burden of court challenges on the less fortunate. The advantage of having a sunset clause is that during that period, the federal government, the provincial governments, and professional associations will be able to establish standards and determine how to proceed and how to assess whether to authorize medical assistance in dying for persons with mental disorders, in order to reach a consensus. I personally would have suggested a period of 12 months, not necessarily 18, but I am still comfortable with that amount of time.

In Quebec, we have seen progress. As a result of Truchon, not only was the concept of reasonably foreseeable death removed from the federal legislation, but an equivalent end-of-life criterion was also removed from the Quebec law. Instead of asking for the law to be suspended, Quebec immediately began working with the Association des médecins psychiatres du Québec to establish assessment criteria and processes together with the Collège des médecins du Québec. Guidelines are already being established. I’ve seen correspondence between the health minister, Mr. Dubé, and the justice minister, Mr. Jolin-Barrette, which has been shared with their federal counterparts and in which they propose to contribute to the exercise and to share the results of their research.

The 18-month period will therefore be important in order to implement the elements required to meet this objective without causing the most vulnerable to suffer. There is another advantage to this 18-month period because, if people are allowed to challenge this law, it will be declared unconstitutional, and it is very likely that the court will grant an extension to put things in place.

This would ensure that a person suffering from mental illness would not be able to access MAID quickly in any event. I believe that the 18-month period will ensure that we strike a balance between the rights of individuals and the implementation of a system that will protect the public and respect everyone’s rights.

I will therefore be supporting Senator Kutcher’s amendment, and I congratulate him for moving it.

Hon. Pierre J. Dalphond
[15:45]

I will build on what Senator Carignan was saying, because I completely agree with him.

As you all know by now, Bill C-7 proposes to deny access to MAID to those with enduring and intolerable suffering because of mental illness, even if their condition is grievous and irremediable. The government justifies this automatic exclusion as necessary to protect those suffering from a mental illness because capacity assessments are more difficult to conduct when a mental illness is present and a desire to die is a symptom of some mental illnesses. That’s the rationale of the government.

There are many problems with this general exclusion, as the excellent brief of Senator Joyal shows. I had the honour of distributing it to all of you on Sunday.

At committee, we heard numerous experts explain how mental and physical conditions often merge together, how conditions of the mind can affect the body and vice versa.

We have also heard that it does not make sense to exclude Canadians suffering solely from mental illness while allowing access for those who may suffer both from a mental and physical illness. In these cases, capacity assessments must also be performed, and it seems it can be done without much difficulty in practice.

In reality, as many witnesses have said, the proposed exclusion reinforces, perpetuates or exacerbates myths and biases about mental illness, including that the suffering of those with mental illnesses is somewhat less legitimate than that of physical conditions and that people with mental illnesses lack the agency or capacity to make decisions about their own suffering.

Recently, in Attorney General of Ontario v. G., the Supreme Court found that the automatic exclusion of all individuals with mental illnesses to be discriminatory and explained:

Though the early 19th century’s most abhorrent treatment of those with mental illnesses has been left behind, stigmatizing attitudes persist in Canadian society to this day . . . . While discriminatory attitudes and impacts against those with mental illnesses relatively persist, they must not be given the force of law.

The Supreme Court also stated that to be valid, the exclusion should include the process that provides for individual assessments. In other words, a broad automatic exclusion doesn’t work; you need to provide for the possibility of case-by-case assessments.

In committee, we heard from experts that MAID assessment for individuals suffering from mental illness can be — and, in fact, has been — done safely on a case-by-case basis. Thus, a blanket exclusion overreaches what is necessary to protect those suffering from mental illness.

I would rather remove the exclusion clause altogether. However, I understand that it will take time for the medical profession to implement standards across the country in response to the requirements set out in Bill C-7. I therefore support the idea of inserting a sunset clause, as proposed by Senator Kutcher.

I want to point out that this sunset clause isn’t designed to give psychiatrists time to receive training on assessing a patient’s capacity to provide consent or on suicidality. As the Association des médecins psychiatres du Québec has pointed out, psychiatrists are already experts on these matters, which are part of their basic training.

The Association des médecins psychiatres du Québec, one of the most progressive organizations in Canada on this issue, says that the system could be up and running within 12 months in Quebec. I understand that this may not be the case all across Canada, so I think an 18-month period would be reasonable.

We must not rule out the possibility that the government might choose to adjust the safeguard measures before the end of the exclusion period. If the government and Parliament were to do that, especially in the current context, it could require more than 12 months.

In conclusion, I thank Senator Kutcher for bringing this amendment forward, and I invite all senators to join me in supporting it. Thank you.

Hon. Marty Deacon
[15:50]

Honourable senators, I rise on debate in support of Senator Kutcher’s worthy amendment, a needed sunset clause on the exclusion of those with a mental illness from being able to access MAID.

Before I elaborate, I would like to take this opportunity to thank all of those who have worked hard to ensure witnesses and submissions were well received by the Legal Affairs Committee. A special thanks to the chair, Senator Jaffer, and deputy chair, Senator Batters; this has been incredible, informative and a privilege to virtually observe each day. Words cannot do justice.

I also wish to thank the many Canadians who have emailed with passion their concerns on all aspects of Bill C-7. I also wish to acknowledge the organizations that I’ve had the honour to meet with virtually, that continued to inform my thinking.

This exclusion is just one of a long list of examples of how Canadians with a mental illness have for some time been dismissed, as if their suffering is not understood or somehow is not real. I believe this stems from an inability to empathize with what they are going though. We can understand some of the apparent and visible physiological conditions that would lead someone to consider an assisted death, and though many of us are uncomfortable with it, we are able to put ourselves in their shoes. For me, this bill is all about putting ourselves in someone’s shoes.

However, this is often not the case for mental illness. Unless you have suffered or are suffering or know someone who has suffered or is suffering, it is difficult to identify with what they are going through. It’s why for so long those suffering from mental illness were told to suck it up, regroup, get a grip or get over it. Society dismissed their real struggles because we could not see or empathize with their conditions. So many suffering from mental illness fight every hour of every day to stay alive, to try to manage their symptoms and to develop strategies that help them move through their day. Like many of you, I observe this on a daily basis.

We have come far in some ways in how we approach and treat mental illness. That is why it is disheartening to see this legislation as written. It suggests that their suffering doesn’t warrant every possible option in our health care system; better options and support, including the option to end their life with peace and dignity through MAID.

With this amendment, I believe Senator Kutcher has found a compromise on the issue. The sunset clause strikes an appropriate balance, saying that on the one hand, Canadians suffering from chronic, untreatable mental illness should not be excluded from the right of having access to MAID, and on the other hand, giving some runway to develop the safeguards needed for those with mental illness considering MAID. These safeguards must be developed in consultation with those who suffer the most. This requires time, listening, diverse expertise, respect, the collection of relevant data and the development of accessible training.

This amendment also addresses my fear that while we are at the moment wringing our hands over how to best protect the segment of our population who suffer from these types of afflictions, we will quickly move on to other things if and when this legislation is passed. With the time afforded to us by a sunset clause, we need to rethink on how to best help and treat those suffering from these kinds of ailments.

I would remind my colleagues that roughly one quarter of Canada’s homeless population suffers from mental illness. These are individuals who have been abandoned by society with little to no access to appropriate care and treatment. If we are serious about protecting this segment of the Canadian population so that MAID is an option of last resort, well, let’s make sure they have the options. Let’s work to ensure that all individuals have access to the kinds of support and resources needed to live healthy, dignified lives; that only once every avenue has been exhausted and they still find they are living through inalienable suffering, only then can MAID be considered a viable option.

Lastly, colleagues, I think it’s important that we remind ourselves of the distinction that medical assistance in dying is not suicide. Twice, I alone have come upon someone who had just committed suicide. It is not peaceful. It is not a choice. By excluding those with a mental illness, we are dismissing their very real and valid concerns, and in some rare cases, could lead them to consider taking their lives by their own hand.

With Senator Kutcher’s amendment, we can help them. We can do our best. We can take time to be diligent from coast to coast to coast, but if at the end of the day their suffering is just too unbearable and they have satisfied the many safeguards in place, MAID is their choice. To deny them this right, in my mind, is cruel, and I would ask that you support this amendment before us today. Thank you, meegwetch.

Hon. Denise Batters
[15:55]

Honourable senators, I rise today to speak against this amendment to place a sunset clause on the mental illness exclusion in Bill C-7. The term “sunset clause” is just a euphemism for the sunsetting of vulnerable people’s lives. This will mean that after a short period of time — 18 months — mental illness will be grounds for being put to death. I cannot make it plainer than that.

Some senators may see the proposal of a sunset clause as a middle ground, a compromise position that seems safe if you are feeling ambivalent about the issue of mental illness and MAID.

Honourable senators, this is no middle ground. A sunset clause would mean the mental illness exclusion would automatically be removed at the end of the time period specified, so that people with mental illness as a sole underlying condition would be able to obtain assisted suicide in 18 months, likely before we’ve even had the parliamentary review of the issue the Trudeau government has promised since 2016; potentially in less time than it would take someone with severe mental illness to see a psychiatrist.

In Canada, one of the basic criteria for accessing assisted suicide is that one’s condition or illness must be irremediable; that is, unresolvable and irreversible. At our Legal Committee, we heard from many medical experts who testified that mental illness would not fit that criterion. Dr. John Maher told us:

Determining whether a particular psychiatric disease is irremediable is impossible; people recover after 2 years and after 15 years. I have repeatedly had psychiatrists refer patients to me where I am told they will never get better, yet they have all had improved symptom control and reduced suffering when they finally get intensive care. Inadequate care causes remediable illnesses to appear irremediable.

Dr. Trevor Hurwitz put it simply: “. . . mental illness that drives patients to suicide is not irremediable.”

Proponents say that these few short months would give the medical community time to come to a consensus on the irremediability and predictability of mental illnesses. That is nonsense. The Council of Canadian Academies, a group of the foremost medial and legal minds in this country, met for 18 months to try to come to a consensus on whether to allow people with mental disorders as a sole underlying condition to access MAID. They could not come to an agreement.

Two of the largest national mental health organizations in Canada — the Canadian Mental Health Association and the Mental Health Commission of Canada — haven’t even formulated their official position on the mental health exclusion in Bill C-7. Expert psychiatrists testified that the lack of consensus on irremediability is due fundamentally to a lack of evidence.

Dr. Mark Sinyor said:

. . . I wish that data were in existence as then we could have an informed conversation about how to move forward. Unfortunately, this includes a nascent area of research which has been presented to you as one where the answers are already well understood and resolved. They are not.

We can all have opinions, but as a country we must support science over rhetoric, no matter how cleverly or vehemently delivered.

Expert psychiatrist Dr. Sonu Gaind agreed, dismissing the idea of a sunset clause altogether. He said:

Some are suggesting the issue is simply lack of consensus and propose a sunset clause on the exclusion of mental disorders to allow time to develop standards. The issue is not lack of consensus; the issue is lack of evidence about whether irremediability in mental disorders can even be predicted. . . . a sunset clause would be putting the cart before the horse without even knowing if the horse exists.

When I asked Dr. Harvey Schipper about a sunset clause, he replied bluntly:

No, I couldn’t begin to support it on my last day on earth . . . . A sunset clause, frankly, strikes me as politically dishonest.

Some proponents of a sunset clause use it as a way to circumvent the irremediability debate. Dr. Karine Igartua of the Quebec Psychiatric Association AMPQ told us:

Nothing substantial will be learned about the prognosis or treatment of mental illness in the next few years that would alter this delicate situation. Therefore, we strongly advocate that the mental illness exclusion be immediately removed from Bill C-7 and that barring that, a sunset clause is added so that the exclusion expires without further legislation needed.

Nothing will be learned about the prognosis or treatment of mental illness in the next few years? Really? Says who? Therefore, we should move ahead as fast as possible to allow assisted suicide for mental illness before those issues are resolved? That’s ludicrous and dangerous. It sounds so innocuous. A sunset clause?

Honourable senators, don’t be fooled. This means that at least some Canadians will have their lives ended before they can access the treatments or options that could very well relieve their suffering and give them years to live. Even one life lost unnecessarily is too many. Take it from someone who knows.

Dr. John Maher offered our committee some advice on this issue. He said:

 . . . With the “reasonably foreseeable death” criterion removed, the use of the irremediability criterion is being changed in practice from “definitely irremediable” to “possibly irremediable.” Is “possibly” good enough when what is at stake is not six months but 60 years? The applicable moral maxim is this: When in doubt, don’t do it.

This is sage advice, honourable senators. When in doubt, don’t do it. I’m asking you, please, don’t do this. Thank you.

Hon. Tony Loffreda
[16:01]

Honourable senators, I speak today to support Senator Kutcher’s amendment that addresses the ineligibility of Canadians who request medical assistance in dying, or MAID, and whose sole underlying condition is a mental illness.

I have had a speech prepared since last fall on Inquiry No. 10 on immigration and Canada’s prosperity. I wanted my maiden speech to be on this topic that is very personal to me, but Bill C-7 is too important and I could not pass up this opportunity.

After much thought and review, I have come to the conclusion that a person suffering from a mental illness as a sole underlying condition should be eligible for MAID. Not only is it fair, but it’s the right thing to do.

Let me be clear: I believe in life, I believe in living with dignity and I believe in dying with dignity. Above all, I believe we have an obligation to better support those who suffer from a mental illness. MAID should not and never undermine our society’s commitment to suicide prevention and improving the accessibility of mental health services.

On MAID, the Association des médecins psychiatres du Québec, the AMPQ, explains that, “Establishing a regime that permits MAID” where a mental disorder is the sole underlying medical condition “must be accompanied by a societal and health-system commitment to providing therapeutic options to these persons.”

Of course, MAID should be used as a last resort, when all other treatments have been explored and have been unable to treat an illness at a level that would allow the patient to live an acceptable life. Individuals are best positioned to determine what is an acceptable life to them.

The Ordre des psychologues du Québec agrees and says that “The experience of suffering belongs to the suffering person.”

With the mental illness exclusion in subsection (2.1) of Bill C-7, it’s clear that the government is not yet ready to consider mental illness as an illness, disease or disability, as per the MAID criteria. However, I think Senator Kutcher’s amendment, which would give the government 18 months to further consider this issue and implement additional safeguards, if necessary, is an adequate compromise.

If MAID is eventually expanded to include mental illness as a sole condition, the current safeguards must be reviewed and enhanced if needed. The AMPQ has put forward some ideas on possible new safeguards, including that the treating physician is not involved in the decision making and there be a minimum duration of active treatment and experience with the condition.

Health professionals are already working together on a multidisciplinary professional education program under the authority of accrediting bodies to create standardized assessments for MAID that will include components addressing mental disorders. The sunset clause in this amendment gives us time to come up with the best program.

We must not forget that patients must continue to meet other eligibility criteria, including that their illness must be causing them enduring physical or mental suffering that is intolerable to them and cannot be relieved under acceptable conditions. Safeguards ensure that MAID is not easily accessible and comprehensive reviews with strict eligibility criteria will always be performed.

MAID is not for people in crisis. As many practitioners have reminded us, it’s for people who have been trying to get better for years, if not decades. It’s for people who have tried various programs, therapies or prescriptions.

In December, the OPQ wrote:

Just like people with physical disorders, people with mental disorders can experience suffering that is enduring and intolerable. It is therefore just as legitimate to request relief from psychological suffering. . . .

The OPQ adds:

To prohibit access to MAiD for persons with mental disorders as their sole underlying medical condition would constitute an infringement of their rights, disrespect for their dignity and a violation of the principle of equity . . .

The Canadian Bar Association agrees and argues that the exemption for mental illness in Bill C-7 infringes on equal rights and submits that the provision will likely be constitutionally challenged.

Beyond these issues, I also feel that the government is discriminating against those who have a mental disorder by excluding them in Bill C-7. This perpetuates the stigma around mental illness.

MAID assessments cannot be perfect. Assessing someone’s suffering is never perfectly measurable. The common thread throughout the entire assessment process must be trust. I often say trust is the currency of every relationship. Our democracy is based on trust.

As a society, we put our confidence in medical professionals for other life-and-death matters, and we trust that they are providing their patients with accurate, knowledge-based advice. Why would MAID be any different?

Honourable senators, as I conclude, I am reminded of something Dr. Gus Grant from the College of Physicians & Surgeons of Nova Scotia said before our Legal Committee when referring to the Canadian Medical Association Code of Ethics and Professionalism: Medical professionals must “Consider first the well-being of the patient; always act to benefit the patient and promote the good of the patient.”

The code further adds that doctors must:

Always treat the patient with dignity and respect the equal and intrinsic worth of all persons.

Always respect the autonomy of the patient.

And:

Never exploit the patient for personal advantage.

I have faith and trust in those who have taken this oath, which is why I support Senator Kutcher’s amendment. I believe we should expand MAID for those who have a mental illness. I feel this amendment is the first step towards that inclusion. Mental health patients who meet all requirements deserve an equal opportunity to alleviate their suffering.

Thank you. Meegwetch.

Hon. Peter M. Boehm
[16:07]

Honourable senators, I rise to add my voice to the debate on Bill C-7 and to support the amendment moved by our colleague Senator Kutcher.

First, I must say that every speech I have heard on this bill has been excellent and heartfelt. I admire the courage of senators to share their thoughts. For me, as for many of us and our fellow Canadians, this is deeply personal.

Each of us, in one form or another, will confront our own mortality some day. Many will also need to confront that inevitability for loved ones by making or assisting in end-of-life decisions. Even if those decisions are made and plans are in place well in advance, reaching that stage is hard. More difficult still is that “end of life” does not necessarily mean “old.”

I am the son of two parents, each in their ninety-third year, and I’m also the father of a non-verbal son with autism spectrum disorder who is 32 years old. My personal and challenging experience with mental illness and my involvement in mental health causes has led to my support for Senator Kutcher’s amendment, which would, 18 months after Royal Assent, repeal the exclusion provision in Bill C-7.

The exclusion of mental illness as an acceptable basis to pursue a medically assisted death has been one of the most contentious and emotional points of debate since Bill C-7 was introduced in the other place last year. People with mental illness deserve to be treated just as any other person before the law. That is not, colleagues, just a humanist ideal. It is, in fact, the law. The Canadian Charter of Rights and Freedoms states in section 15.(1):

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination . . . .

It does not take a Charter expert — and there are several in this chamber — to see that the mental illness exclusion in Bill C-7 poses a serious problem. At the same time, I do otherwise support the bill. It is not perfect. No bill ever has been or ever will be, but it will help to alleviate the profound distress felt by Canadians and their loved ones who are suffering so badly that they feel a medically assisted death is their only option. That is why I support Senator Kutcher’s amendment, which I see as a reasonable compromise.

If the amendment is adopted, once Bill C-7 receives Royal Assent, the mental illness exclusion would remain in place for 18 months, at which point it would be repealed. The effect of this amendment is to make clear that Canadians with mental illness must be treated equally before the law as the Charter dictates, and that having a mental illness doesn’t necessarily mean that one lacks the capacity for free and informed consent and to understand the irreversible consequences of MAID. The amendment would ensure that the rights to autonomy and self‑determination of all Canadians are respected and that all have equal access to MAID, assuming they’ve been properly assessed as having the capacity to provide consent.

High-quality education and training on assessing capacity and administering MAID would be created by medical experts, including national medical and nursing professional organizations, during the 18-month period between Royal Assent and repeal of the exclusion provision. In fact, as Senator Kutcher said in his remarks, this program is already being worked on and will be accredited by the Royal College of Physicians and Surgeons, and by the College of Family Physicians. The major impact of this element of the amendment is that all Canadians, regardless of which province or territory they call home, will have equal access to a standard level of high-quality care when it comes to MAID, both in terms of assessment and administration.

Bill C-7 is an amendment to the Criminal Code, which is not the obvious avenue for legislating health care. As such, the 18‑month period will allow time for health authorities, including MAID assessors and practitioners in every jurisdiction across our country — including, crucially, in Indigenous communities — to adapt the coming national standards to their own regional realities while maintaining the same high level of care and access for all Canadians. This is important, not just in terms of equality, but also in terms of protecting patients and health practitioners. While keeping the exclusion in place for now is not ideal, I strongly believe it is a fair and reasonable compromise to a difficult problem.

There are too many Canadians enduring terrible pain and suffering without proper access to MAID. They deserve to choose how and when to end their lives and to do so with the dignity inherent to all human beings. Bill C-7 should be passed, colleagues, but it can be improved in a profound way by adopting Senator Kutcher’s amendment. I urge you, honourable senators, to vote in favour of this amendment and in favour of Bill C-7. Thank you.

Hon. Kim Pate
[16:12]

Honourable senators, like most of you, I rise today to speak with my mask on out of respect for the safety of staff and colleagues in the chamber, and to model the safety precautions to which we are expecting all Canadians to adhere.

Since my appointment shortly after Bill C-14 came into force, our office has received too many calls and letters from people in prison requesting that I intervene to assist them in receiving medical assistance in dying. Some are terminally ill or suffering intolerably and have been unable to access mechanisms for transfer to hospitals, hospices or compassionate release that are available according to the law, but which decision making by correctional authorities has rendered almost non-existent in practice. Many of them would be folks targeted specifically by this amendment. They are not dying, but are suffering intolerably as the result of mental health issues created or exacerbated by their conditions of confinement. Many of us have now witnessed firsthand the punitive and restrictive conditions of segregated prisons within prisons, where prisoners with mental health issues too often languish.

Although Bill C-83 was meant to put an end to the practices of solitary confinement or segregation, as we have seen, the practices may have been renamed but the conditions persist, as do the resulting irreversible physical, psychological and neurological harms. With the onset of COVID, whole prisons have been subjected to conditions amounting to segregation for weeks and months for nearly a full year.

When he appeared before the legal committee, the Correctional Investigator testified that medical assistance in dying is currently easier to obtain than any other measures, particularly compassionate release for health reasons, and pointed to cases of prisoners seeking medical assistance in dying as the alternative. Moreover, there is no requirement that such access be reported or that the decisions be reviewed. Consequently, in addition to calling for a moratorium on access to medical assistance in dying in prisons, he cautioned us to be aware of these realities as we consider extending MAID to conditions beyond physical illness.

For women and men subjected to conditions recognized under international law as amounting to torture, unable to see their families and loved ones, how can we say non-end-of-life medical assistance in dying is a choice, when the alternatives are cruel conditions of confinement with completely inadequate health and mental health care? What about those in the community who live with psychological suffering and are unable to afford access to mental health care, to medication and to necessities of life for mental and physical well-being, such as safe and adequate housing? Or those who, in the absence of such supports, too often end up on the streets or in prison because it is the only institution that cannot refuse them following mental health crises? In other words, those for whom this amendment would hasten to offer death, despite the fact that Canada has never invested fairly in their lives.

Insisting that non-end-of-life medical assistance in dying is a matter of individual choice obscures the stark reality that it is really only a matter of choice for those privileged to have access to resources that provide care options. It also obscures the lack of access to the same wide variety of choices that has disproportionately characterized the lives, and now perhaps the deaths, of those who are marginalized as a result of systemic ableism, racism, sexism and poverty. I struggle with how we can justify prioritizing putting in place more rights for those most privileged without the same insistence on putting in place the health, mental health, social, housing and economic supports necessary to ensure that all of us have meaningful opportunities to exercise choice. That, honourable colleagues, is my dilemma.

Meegwetch. Thank you.

Hon. Frances Lankin
[16:17]

Honourable senators, I appreciate the opportunity to speak to this amendment. I want to make it clear that I support this wholeheartedly. I’d like to thank Senator Kutcher for the work he has done, along with other honourable senators who have been worked on this. I want to thank those honourable senators in other groups who I reached out to in order to discuss this issue and their thoughts about it. It has helped me very much with the development of my own thinking.

First, I am very convinced by the arguments that we must take our role seriously around assessing the constitutionality and compliance with the Charter. That has led me to believe — as I have looked at the debates prior to Bill C-14 and Bill C-7 and at the evolving court decisions and directions — that there is every likelihood that this may well become an issue that is challenged in the courts and successfully challenged.

I have also been discomfited by the discussion and debate that I have heard, particularly from those in the psychiatric profession. I won’t go into that in depth. I think Senator Batters covered a good deal of that in her presentation.

It seems to me that the idea of a sunset clause is not just a compromise. For me, it is a necessary accompaniment to the belief I have that this would be ruled unconstitutional. I think it is important to challenge and give time, support and resources to the development and establishment of adequate guidelines. I want to remind us that when someone applies to be considered for MAID, they’re not applying to get MAID and just get it. There is a process of assessment. There is a process of ensuring there are guidelines to be met and the right effort goes into that.

As Senator Loffreda said — and I believe very strongly in the professional ethics of health practitioners across a variety of disciplines that come together to support this process.

What I’ve really been upset about, maybe because I didn’t know this, is that there are not national standards that have been brought about in terms of the application of the assessment of MAID and the application of guidelines and protections. I do realize very much the provincial jurisdiction with respect to the delivery of health care, but I think that something of this nature — and when we’re dealing with, again, a Criminal Code amendment, not health care policy in and of itself — needs work on health care policy to develop these guidelines. I am most encouraged by the movement to the development of accreditation standards and the professional development educational programs that are being developed right now. I believe the 18 months are critical for that work to progress, for that work to be solidified, in the practice of assessing and approving MAID.

It is for that reason that I very strongly support this proposal for the sunset clause.

I hope, as we proceed in our deliberations, we work hard to identify those challenges that we will need to look at during the reviews that I — as all of us do — regret have not taken place as were planned, and as had been intended by many of us who had concerns about Bill C-14 and its constitutionality.

I won’t go on any further. I just want to thank people for their tremendous contribution in the debate and for the work that has gone on. All of us, irrespective of how we feel about any particular amendment or the bill itself, have worked very hard to deepen our understanding and to wrestle with some of these issues. I’m comfortable that at the end we will, with wisdom, take the best direction as we can at this point in time for all Canadians.

Hon. Tony Dean
[16:22]

Honourable senators, I support Senator Kutcher’s proposed amendment. It would both recognize the constitutionality of MAID’s application to mental illness and provide the psychiatric profession with sufficient time to complete its ongoing work in the area of patient competency, standardized approach to assessment and the development of standardized training for professionals involved in MAID.

Senator Kutcher’s amendment deserves support because it’s consistent with major court decisions and the principle of equality under the Canadian Charter of Rights and Freedoms, and its proposal for an 18-month delay is respectful of the complexity associated with assessments and decision making in this area. The amendment also recognizes that, while this would open the door to MAID for those competent to make these weighty decisions, it might potentially do this at the expense of vulnerable people. In other words, access must be accompanied by safeguards.

Colleagues, many of these safeguards exist already. They’re embedded in medical ethics, professional training, professional standards, codes of practice and well-established protocols and procedures of the sort likely found in palliative care settings, which by their nature, of course, are also terminal. But more work is needed. The availability of MAID to the field of mental illness would be far from a cold start, and it would be a long way from a slippery slope. The psychiatric profession, including those specializing in medical ethics, has been developing MAID protocols since 2015. These are already rigorous, but they will require more development and collaboration between medical experts across the country with a view towards developing national standards for determining competency, and the assessment of applicants with severe mental illnesses. This process could be completed within a year, we are told, so an 18‑month period for preparation should be sufficient for this purpose.

As in the case of assessing major physical health issues, mental illness assessments would require examination of the potential for amelioration of very severe symptoms in relation to the likelihood of ongoing or even more severe suffering. These assessments would be much more rigorous than examining just suicidal risk. In fact, the presence of suicidal ideation, we are told, would likely raise questions about the competence of an applicant to make reasoned decisions about assisted dying.

It’s hard for many of us to imagine the degrees of suffering involved here or the complexity and nuances of assessment processes. So at the invitation of Senator Kutcher, two highly qualified psychiatrists, with backgrounds in medical ethics, have described some instructive examples of the sort of MAID applicants who might likely meet what is likely to be a high bar for medically assisted death.

Mona Gupta is a psychiatrist and researcher in philosophy and ethics at the University of Montreal. She is a principal investigator of a CIHR-funded research project exploring clinical assessment processes for MAID requests. Dr. Justine Dembo is a psychiatrist at Sunnybrook Health Sciences Centre. She’s been a MAID assessor since the Carter decision in 2015, and has researched the intersection of MAID and mental disorders since 2009.

The doctors describe their work and experience in assessing candidates for MAID. Each presented separate case histories involving one of their patients. While having quite different biographies, each patient has suffered lifelong psychiatric illness following traumatic experiences that go back to childhood. This is involved, unbearable and intractable suffering over decades, and that has worsened in their senior years. Both have experienced multiple and lengthy periods of hospitalization — 40 hospitalizations in the case of one person. One candidate made multiple suicide attempts, although none in the past 10 years. Both patients have accepted an extensive range of therapeutics, including several classes of pharmaceuticals, electroconvulsive therapy and various forms of behavioural therapy, none of which have been successful in ameliorating long-term and severe suffering. Both are now unable to work or enjoy activities they would otherwise find meaningful. They are each confined to their homes and are described as being in states of relentless, unbearable suffering, pain and distress, which cannot be ameliorated by any known therapy.

Colleagues, the characteristics shared by these patients are considered likely to qualify them for support in obtaining a medically assisted death. If not these two candidates, colleagues, it’s hard to see who would qualify. Notable, also, are the lengthy and detailed assessment processes involved here, which —

The Hon. the Speaker pro tempore
[16:28]

Senator Dean, I have to interrupt you. Your six minutes is over.

Senator Dean
[16:28]

I support the amendment. Thank you.

Hon. Brent Cotter
[16:29]

Honourable senators, thank you to the senators who are participating in this profound and profoundly human debate. I have, as a member of the Standing Senate Committee on Legal and Constitutional Affairs, had the opportunity to listen, and listen closely, to witnesses — dozens of witnesses — and read the submissions of those witnesses with some care.

I don’t intervene lightly on questions of such import, especially when the subject matter is well beyond my own expertise, and that is certainly true with respect to the issues of health and health care that this bill and this amendment raise. But as many senators have stated, the vagueness, and in particular, the exclusion from access to MAID where mental illness is a person’s sole underlying condition is, in my view, likely unconstitutional.

So this raises a serious dilemma for me and, I think, for other like-minded senators. What Senator Kutcher’s amendment does, though, is to bridge that gap. It bridges the gap in a way that — if I may borrow a repeated metaphor from remarks I delivered in December — provides a bridge over troubled water for Canadians suffering grievously from mental illness. In that sense, I think it resolves the concerns I have in both constitutional and human terms. It produces a process and a regime by which it respectfully facilitates, through the sunset clause — or what I would prefer to refer to as a sunrise clause, since it provides a route for those who are suffering grievously to contemplate a death with dignity — and provides a route for health professions the ability and time to prepare appropriate decision-making processes and training to serve these Canadians well.

If, on the other hand, mental illness remains outside the scope of MAID, as many of you will know, I have been considering an amendment that would call for the exclusion of mental illness as a sole underlying condition, to be resolved by a reference to the Supreme Court of Canada. But I will say this: For many reasons, this is a less satisfactory approach. A considered transition into MAID through the amendment that Senator Kutcher proposes is much more satisfactory.

In this respect, while I do not agree with all of what I heard Senator Woo say yesterday, I do agree with his point that if there are mechanisms by which we can make the right decisions, we should do so. It is, therefore, far superior for us to get it right, which I think Senator Kutcher’s amendment would do — not unlike what the Senate attempted to do, unsuccessfully, in 2016 with a “death not reasonably foreseeable” amendment. I am going to support this amendment and I hope you will too. Thank you very much.

Hon. Yuen Pau Woo
[16:32]

Honourable senators, we spent 45 minutes earlier today paying tribute to the first facilitator of the ISG, who was described as independent-minded and a maverick. Perhaps I’m paying the best tribute to her now in offering an independent and, perhaps, maverick view.

Let me start by saying that it would be unfair to make a presumption that any one of us speaking on any side of this issue lacks empathy or seeks to stigmatize or somehow is not in touch with people who have mental illness. Senator Boehm and others have talked about personal experiences that we’ve all had. Let’s go on the assumption that we have those sentiments at heart and feel it very deeply, however we might vote on this amendment and on the bill in general.

I thank Senator Kutcher for his proposed amendment because it is, in fact, a bridge from one place to another that tries to find a middle road through a very difficult issue.

Colleagues, there are two reasons to support this amendment. Both reasons, in and of themselves, are sufficient to support the amendment, and they are as follows: The first reason is if you believe strongly that the exclusion of mental health is unconstitutional; the second reason is if you believe, with a high level of confidence, that the medical profession already has the tools and knowledge to do capacity assessment. If you feel strongly about one or both of these conditions, not only can you support the amendment, but you should support getting rid of the exclusion altogether. We heard as much from Senator Carignan and to some extent from Senator Dalphond as well.

If you hold a softer view of the second condition, which is that medical professionals have well-established competencies to do the assessment and so on, then you open the door to this idea of a phase-in period, which is precisely what Senator Kutcher is offering us.

But you have to ask yourself what this phase-in period is trying to do. If you already believe that medical professionals have the competencies and it is just a question of, say, training more people, then why would you not go all the way to excluding mental health right now? The competencies are established. Why would we cause more suffering — to use the words of some senators — by delaying it further?

If, on the other hand, your view of the medical profession’s ability to do capacity assessment is that “it’s not quite there yet, there are still some standards or protocols or rigour that need working on,” then it’s not exactly clear what this waiting period is doing, this sunset period. If your view is that there is work left to be done, then you have to realistically ask the questions: How much work is left to be done? And is, in fact, 18 months the right period of time?

We’ve heard use of the term “sunset clause,” or “sunrise clause,” and a variety of other language. Perhaps it’s more akin to an aircraft taking off. Senator Kutcher, with his knowledge and expertise — which I regard very highly — is proposing that the runway be 18 months long. But what if the plane is not ready to take off in 18 months? What if the problem is not about training more people or aligning standards, but it’s about sorting out difficulties and challenges that the profession itself has in coming to terms with how they do capacity assessment?

Senator Kutcher does not agree with this view. I am simply pointing out the way we need to think about this amendment and how we go about voting for it. If you are persuaded already that it is unconstitutional, if you are persuaded that the profession has the tools, skills and competencies to, in fact, assess mental health as a sole underlying condition, then there is nothing to stop us from removing it altogether. If you have doubts, as I do, that there may be more work to be done, then perhaps the runway is not long enough, and perhaps we should keep the exclusion for the time being. Thank you, colleagues.

Hon. Yonah Martin (Deputy Leader of the Opposition)
[16:37]

Honourable senators, I wanted to ask a question to Senator Kutcher rather than rise on debate, because I was not prepared to enter here. But perhaps this is a small tribute to our former colleague the late Senator Elaine McCoy. She was so good on her feet. Based on what I’m hearing, I feel compelled to be a voice for someone I spoke to this past week, as well as simply putting this on the record.

First, I want to thank everyone for what they have prepared and said to date, and to thank Senator Kutcher for the work he has done. I know he has spent a lifetime in his profession and he is very good at what he does.

For the record, I would like to caution our chamber to consider what this amendment proposes. This is taking us into a whole other debate. I feel like we are not dealing with the Bill C-7 we had before, as we are suddenly talking about a greater expansion. I am not saying that those Canadians who suffer from mental illness as the sole underlying reason do not have rights. I have listened to the debate and I appreciate what everyone has said. I wanted to put the following concerns on the table as to why we should take our time and perhaps not come to this now but a little later. I don’t know what would satisfy those who support this as “a little later,” but these are the comments I wanted to make.

With regard to what Senator Kutcher said about national training that all will be organized, I question the timing of that. In this COVID-19 reality, with our expansive country, the urban-rural divide, the concerns expressed by our witnesses, the lack of consultation and certain health professionals expressing their concern about including those with mental illnesses in the regime, I think this runway of 18 months is still not long enough. A year would certainly not be long enough. We have not even done the five-year review. I wish we could have done that first before we even looked at what safeguards to remove or add.

Many senators have said that we could adopt this motion and then that would give us 18 months to consider the regulations and safeguards. But we’re also debating about removing safeguards, so I’m confused as to whether we are actually opening it up to even greater risks without being fully prepared.

I’m trying to get my bearings at this moment with this first amendment and all the speeches I have heard.

I did speak to Gabrielle Peters, who lives with a disability and with poverty. Her testimony through Spring Hawes and Dignity Denied was extremely compelling at the committee. I accepted a call with them, and I am going to speak later in another debate and include her words to me, just to be her voice and the voice of those who are so concerned about what we are doing here, even with Bill C-7.

Senator Lankin mentioned national standards and training, which Senator Kutcher mentioned. I believe that any time you add the word “national,” the challenge in our country is to actually take it to the nation in the way it must be done. And adapting to Indigenous standards — I’m not sure, without even having these standards yet, how all of this will be adapted. We heard from witnesses that there was not enough consultation with Indigenous communities. We heard from the majority of Canadians living with disabilities that they have these concerns. We have heard from physicians about their conscience rights.

So while we have yet to look at a five-year review to fully assess and make the kinds of amendments we are proposing, we are now asked to consider this amendment, which is very alarming. On a personal level, I have family members, people who are very close to me, who are living with mental illnesses. We have not looked at the pharmacology of what happens. To those who have not had the chance to witness first-hand, if these individuals I love dearly were given the option of MAID during a time when the medication they were taking made them feel like a piece of wood trapped in a room for a whole year — and another former colleague who talked about that same drug that made him suicidal — I know we would not have these individuals with us now.

I caution our chamber to take some time. Let us continue with Bill C-7. Although I know there is a sunset clause and time that is being proposed, I want to say that, based on everything we’ve heard — and, in Vancouver, with an opioid crisis where we cannot even deal with the mental health issue, let alone what would happen if we looked at opening up MAID in 18 months — that is alarming. We have had years of an opioid crisis — not enough detox beds or rehab space — and it’s a growing concern throughout our country, not just in B.C.

For all of these reasons, I want to caution all of us to carefully consider and to take our time. I do not believe 18 months is enough time based on everything that has happened to date and the fact that we don’t even have the five-year review. Thank you.

Hon. Chantal Petitclerc
[16:43]

I, too, would like to share my thoughts on this amendment. First, I would like to thank Senator Kutcher for all of the work that he has done over the course of his career, for the attention he is giving to this issue and for the amendment before us.

Senator Kutcher, as you know, I appreciate the intention behind your amendment, which is imposing a deadline to ensure that safeguards are examined and put into place quickly. However, as you know, I’m also thinking about the Council of Canadian Academies’ report on MAID for mental illness.

As we have heard from mental health experts at the committee during the pre-study, they are significant. There are differences of opinions, convictions and strong arguments as to whether MAID is ever appropriate or when it is appropriate where the only medical condition is mental illness, and if so, what kind of safeguards would be sufficient or adequate to make sure that a person’s life is never prematurely ended when their quality of life could have been improved.

I have shared with you more than once that I struggle. While I support that we cannot discriminate or isolate a group, and while I am 100% in agreement that mental illness can bring intolerable suffering, what I heard in committee left me still struggling, although confident in the competence of our professionals.

In my view, it would be a cautious approach for Parliament to retain the mental illness exclusion, as it is proposed in Bill C-7, until MAID for mental illness can be safely provided and after considering what safeguards are needed in the Criminal Code.

But if this chamber is to support a sunset clause, we must ensure that Parliament and the government have adequate time to review, consult and put together a regime for mental illness as a sole underlying condition that answers all the complexities of the issue. Thank you.

Senator Batters
[16:46]

I have a question for Senator Petitclerc. Being the bill’s sponsor, this is obviously an important part of your bill. I will give you a little more time to stand up for this important part of your bill.

Senator Petitclerc
[16:47]

I am not sure I understand the question.

Senator Batters
[16:47]

Please take a little more of your time. You are the sponsor of this bill. This is an important part of your bill. Please take a little more time to stand up for those with mental illness and for this part of your bill.

Senator Petitclerc
[16:47]

I said what I wanted to say in that regard and I stand by it. Thank you.

The Hon. the Speaker pro tempore
[16:47]

Are honourable senators ready for the question?

The Hon. the Speaker pro tempore
[16:47]

In amendment, it was moved by the Honourable Senator Kutcher, seconded by the Honourable Senator Dalphond, that Bill C-7 be not read a third time but that it be amended — May I dispense?

The Hon. the Speaker pro tempore
[16:48]

All those opposed to the motion in amendment please say “nay.”

The Hon. the Speaker pro tempore
[16:48]

Those in favour of the motion who are in the Senate Chamber will please say “yea.”

The Hon. the Speaker pro tempore
[16:48]

Those opposed to the motion who are in the Senate Chamber will please say “nay.”

The Hon. the Speaker pro tempore
[16:48]

In my opinion, the “nays” have it.

The Hon. the Speaker pro tempore
[16:48]

There will be a vote at 5:03 p.m. after a 15-minute bell.

Call in the senators.

The Hon. the Speaker pro tempore
[17:03]

Honourable senators, pursuant to the order of December 17, 2020, there has been a slight adjustment in the voting process for senators participating by Zoom. You will now appear on camera as your name is called. I would ask you to be aware of this and to ensure that both your face and your card are visible. If you get any pop-up messages during the vote, please simply ignore them.

Once your name has been called, you can lower your card.

Senator Pate
[17:18]

Honourable senators, I would like an opportunity to explain my abstention.

The Hon. the Speaker pro tempore
[17:18]

Yes.

Senator Pate
[17:18]

Thank you. I abstained from this vote on the grounds that I believe it is irresponsible to rush to expand access to non-end-of-life medical assistance in dying in the name of upholding individual autonomy and choice, without having first — or at least also — insisted with the same urgency and conviction on equitable and meaningful access to health care and mental health care, as well as social, economic and housing supports.

These measures are vital in order to ensure everyone can access the supports that create meaningful choices about how to alleviate suffering, including suffering related to mental health issues. Thank you, Your Honour.

Senator Dalphond
[17:20]

Honourable senators, I am proposing an amendment to prevent consequences not intended by the government that could result from using the exclusion of mental illness as the sole underlying condition as grounds for denying access to medical assistance in dying to people with neurocognitive disorders, such as Alzheimer’s, Parkinson’s, Huntington’s and dementia.

Eligibility for medical assistance in dying is established based on the criteria set out in subsection 241.2(1) of the Criminal Code, which Bill C-7 does not propose to amend. In order to get access to medical assistance in dying, a person must have a grievous and irremediable medical condition, which means that the person must have a serious and incurable illness, disease or disability.

Bill C-7 proposes adding that “mental illness is not considered to be an illness, disease or disability,” and with the amendment that we adopted, this exclusion would continue to apply for 18 months. If the House of Commons accepts our proposal, then the mental illness exclusion would still apply for the next 18 months. The practical effect of this exclusion is to restrict access to medical assistance in dying for people suffering solely from a mental illness for as long as the exclusion is in effect.

In addition to the concerns we discussed a few minutes ago regarding stigma and discrimination, many experts spoke about the uncertainties that even the use of the term “mental illness” raises.

Dr. Mona Gupta, a psychiatrist and chair of the Association des médecins psychiatres du Québec’s advisory committee on medical assistance in dying, which was asked to examine the issue by the College of Physicians, told the Standing Committee on Legal and Constitutional Affairs the following, and I quote:

 . . . the expression “mental illness” is not clear. In standard psychiatric terminology, we speak of mental disorders. It’s a very broad area.

Fleur-Ange Lefebvre from the Federation of Medical Regulatory Authorities of Canada added:

First, there is a lack of clarity. “Mental illness” is not a precise medical term. In medical terms, “illness” refers to the patient’s individual experience with a disease.

The lack of precision casts a doubt and may lead to debate, in practice and possibly before the courts, as to whether or not neurocognitive disorders like Parkinson’s and Alzheimer’s constitute a mental illness for the purposes of the exclusion. Dr. Timothy Holland, a MAID physician provider and assessor explained:

Mental illness, and the definition of illness itself, is something that has been in debate within medicine and philosophy. So many people will define mental illness as a specific set of diseases that are housed within the mind and within the DSM5 criteria — anxiety, depression. Other folks might argue it may be Parkinson’s or Alzheimer’s.

The uncertainty is further exacerbated by the fact that all forms of dementia and other neurocognitive disorders can be found, alongside other mental disorders, in the two main classification manuals used in psychiatry, as Professor Donna Stewart from the University of Toronto explained:

The American Psychiatric Association and the World Health Organizations have independently developed a classification of diseases. The American one, which is called the DSM-5 — which stands for Diagnostic and Statistical Manual of Mental Disorders, fifth edition — includes all the dementias in their list along with a number of other neuropsychological conditions. The International Classification of Diseases, the ICD-10, of the World Health Organization also includes the dementias. Both are extremely broad, and both include the whole area of mental disorders under those classifications.

It is important to note that people with neurocognitive disorders, like dementia, can and have met the eligibility criteria set by Bill C-14. As Professor Jocelyn Downie from Dalhousie University explained:

People with dementia can meet the eligibility criteria under Bill C-14. In fact they can meet the fourfold criteria. You can have capacity and still already have met the criteria for reasonably foreseeable, serious and incurable advanced state of irreversible decline and capability, and enduring intolerable suffering. So we have people with dementia getting MAID now under the current system.

An uncertainty in the Criminal Code on the meaning of mental illness may therefore lead to a real regression in the rights of people with neurocognitive disorders. There is a real risk of a chilling effect in practise. To avoid any potential criminal charges, physicians may choose to err on the side of caution and deny MAID requests from patients with neurocognitive disorders who would otherwise qualify for MAID.

Appearing before the committee, the Minister of Justice, David Lametti, tried to alleviate uncertainty by referring to the explanations in the “Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision,” a background document published by the Department of Justice. The document reads as follows:

Despite the absence of a single clear definition of mental illness, in the context of Canadian discussions on MAID, this term has come to be understood as generally referring to those conditions which are primarily within the domain of psychiatry . . . . In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry . . . or specialties outside of medicine . . . .

In his testimony, Minister Lametti added, and I quote:

Let me be clear: The exclusion is not intended to capture neurocognitive disorders that are due to Alzheimer’s or Parkinson’s disease . . . .

Notwithstanding the minister’s comments and the explanations in the background document, that clarification does not appear in the text of the bill. Unfortunately, I am concerned that this could cause problems for practitioners.

There were also questions about what weight the background document might have when courts are called upon to interpret the expression “mental illness.” In response to a question from Senator Carignan, Professor Patrick Taillon of Laval University explained, and I quote:

. . . it is not uncommon for interpretation to be informed by documents other than acts and regulations, but in criminal law, it seems less likely, or at least less frequent, especially for mental health issues.

The issue here is a lack of clarity in Bill C-7. In the absence of a legislated definition, there will likely be uncertainty and debate on whether the mental illness exclusion is meant to include neurocognitive disorders. These individuals may find themselves excluded from the MAID framework even though this is not the government’s intention. That unintended consequence can be avoided by a simple change to the language proposed in Bill C-7.

Before the committee, Fleur-Ange Lefebvre stressed the importance of clarity and the language used, and I would like to quote her again:

. . . I’m sure we will all agree there must be clarity of legislation. The language cannot allow for divergent interpretations or uncertainty. Patients, families, the public, physicians, other health care professionals and law enforcement must all share the same understanding of the legislation.

Honourable senators, it is important, for the sake of clarity in the law, to ensure there is no regression in terms of access to MAID for Canadians with neurocognitive disorders.

Hon. Pierre J. Dalphond
[17:31]

Therefore, honourable senators, in amendment, I move:

That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 3, by replacing line 6 with the following:

“ness, other than a neurocognitive disorder, is not considered to be an illness, disease, or disabili-”.

The end result would be that the whole clause would now read as follows:

For the purposes of paragraph (2)(a), a mental illness, other than a neurocognitive disorder, is not considered to be an illness, disease or disability.

Thank you.

Hon. Diane Bellemare
[17:32]

Madam Speaker, I have a question for Senator Dalphond.

The Hon. the Speaker pro tempore
[17:32]

Yes, Senator Dalphond has three minutes left. Would Senator Dalphond take a question?

Senator Dalphond
[17:32]

Gladly.

Senator Bellemare
[17:32]

Senator Dalphond, my question is this: Why not wait for a full review of the legislation to be done, either next year or sometime soon, before proposing this kind of amendment?

I understand it and I agree with you, but I’m not sure that Bill C-7 is the best way to make all these changes. What are your thoughts on that?

Senator Dalphond
[17:33]

Thank you for the question, Senator Bellemare.

This amendment doesn’t change the government’s intentions. Rather, it confirms its intentions regarding the mental illness exclusion, which is new and wasn’t included in Bill C-14. It confirms what the minister told the committee and what the government’s explanatory document also says.

If we had to wait a year and a half to revisit the issue, uncertainty would abound and Canadians would be denied access to medical assistance in dying. Unfortunately, their psychiatrists would conclude that they don’t qualify because they have Alzheimer’s or Parkinson’s, which are classified as mental illnesses in psychiatric manuals.

I hope that answers your question.

Hon. Frances Lankin
[17:34]

Senator Dalphond, will you take another question?

Senator Dalphond
[17:34]

Of course.

Senator Lankin
[17:34]

I support the intent of your amendment and what the government’s stated intention is. I want to know from a legislative drafting point of view, when you specifically name certain disorders — neurological disorders in this case — that will not be included in a definition of mental illness, are we at risk of some other types of disorders being read to be included because they were not specifically excluded, and has that been looked at in your drafting of this? I’m just looking for clarity to ensure this is not creating a potential new problem.

Senator Dalphond
[17:34]

Thank you for this excellent question.

I’m not a psychiatrist and I will leave it to Senator Kutcher to explain psychiatry better than I can. But I can tell you for the last few weeks I have been working with the Quebec Association of Psychiatrists, Dr. Gupta, Dr. Green from outside Quebec and many other psychiatrists to find, first, a definition of mental illness. It became impossible to define, but they were clearly in agreement with the exclusion which is being proposed as achieving what is in the practice and what the government is trying to do.

The Hon. the Speaker pro tempore
[17:35]

Do any other senators have any questions? The motion in amendment is as follows:

That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 3, by replacing line 6 with the following:

“ness, other than a neurocognitive disorder, is not considered to be an illness, disease, or disabili-”.

Hon. Pierre-Hugues Boisvenu
[17:36]

Honourable senators, I support the amendment proposed by my colleague, Senator Dalphond, and I will explain why.

As was reiterated many times during committee discussions, the mental illness exclusion is one aspect of the bill that many witnesses consider to be unconstitutional and discriminatory. It also does not clearly identify the persons affected by this exclusion. As Professor Downie of Dalhousie University stated when she appeared before the committee, clinicians do not draw a sharp line between the mental and the physical. The bill is also unclear when it introduces the exclusion clause without really providing a precise definition of the subject.

I believe that the issue of people suffering from neurocognitive disorders is extremely important and I will be proposing an amendment on that later. Neurodegenerative or neurocognitive diseases are on the blurred line between a physical and a mental illness. We know that there is a physical aspect associated with the degeneration of brain cells and that there can also be a mental aspect where the cognitive loss affects the patient’s intellect.

When I spoke with Joanne Klineberg, Acting General Counsel at the Criminal Law Policy Section of the Department of Justice, she assured me that neurodegenerative diseases are not excluded if the patient meets all the criteria for medical assistance in dying.

We must all recognize that the term “mental illness” is quite broad and the definition provided by the Department of Justice is not clear where it states that the exclusion concerns conditions “that are primarily within the domain of psychiatry.”

As Senator Dalphond indicated in his explanation:

The uncertainty is not mitigated by the explanation we find in the legislative background to Bill C-7. According to the Association des médecins psychiatres du Québec:

This statement is disconcerting because neurodevelopmental disorders are not subject to the exclusion clause. Neurodevelopmental disorders include such conditions as attention deficit hyperactivity disorder, or ADHD, learning disorders and stuttering. It would be counterintuitive for clinicians that such conditions would be eligible for requests for medical assistance in dying but much more serious conditions such as schizophrenia or bipolar disorder would be excluded. This could cast doubt on who exactly the government intends to exclude with the mental illness exclusion provision.

This lack of precision in the bill could have repercussions on requests for medical assistance in dying for persons with neurocognitive disorders. Health practitioners might exclude certain requests — out of caution or hesitation — because of this grey area that is maintained by the current legislation and the lack of clear definition of mental illness.

Based on this uncertainty, I believe Senator Dalphond’s amendment makes sense. It would clarify the wording of the bill, which I think is necessary before it comes into force. With this clarification, the Senate is doing its job and making sure that the bill will be clear and that it will apply in the intended instances.

I therefore fully support Senator Dalphond’s amendment.

Hon. Stan Kutcher
[17:40]

I also support Senator Dalphond’s amendment. I think it’s important for clarity. It’s now much clearer. This language was not in the bill, but we were told by the minister that this is what he understood the bill to address. It’s very important to bring clarity into the bill.

This amendment is a clarification that will help ensure no one loses a right to MAID assessment on the basis of a diagnosis over the next 18 months. In my opinion, it also is a step forward in better understanding and talking about mental disorders because the language it uses is clinically recognizable. Because we can look at the clinically recognizable criteria, we all know better what Bill C-7 is talking about.

This improved clarity will be important for persons who are considering MAID. It will be very important for MAID providers, clinicians and regulators. Should there possibly be a court challenge or a court ruling on this issue during the next 18 months, this will assist the courts who are tasked with making a ruling.

I thank Senator Dalphond for this amendment, and I urge our colleagues to support it. Thank you.

Hon. Renée Dupuis
[17:42]

I have a question for Senator Kutcher.

The Hon. the Speaker pro tempore
[17:42]

Senator Kutcher, would you answer a question from Senator Dupuis?

Senator Kutcher
[17:42]

Certainly. How much time do we have?

The Hon. the Speaker pro tempore
[17:43]

You still have three minutes.

Senator Kutcher
[17:43]

Thank you so much.

Senator Dupuis
[17:43]

Senator Kutcher, your proposed amendment uses the term “neurocognitive disorder.” Can you confirm whether the term “neurocognitive deficits” is also used? Do you think that this includes major neurocognitive deficits as well as minor ones?

Senator Kutcher
[17:44]

I think this bill clarifies the diagnostic categories that currently are subsumed under neurocognitive disorders. They would be diseases such as Alzheimer’s, the other various types of dementia and those kinds of disorders.

[17:44]

Before I begin my brief comments in support of my colleague Senator Dalphond’s amendment, I want to thank the members of the committee who spoke today and who kept us informed throughout the process.

I will support this bill and I intend to support the amendments proposed by Senator Kutcher and Senator Dalphond. However, even if their amendments are defeated, in either the Senate or the House, I will continue to support the bill, because I think it addresses a need.

The train has left the station. Medical assistance in dying is a recognized right. In Canadians’ minds, this bill is meant to improve the current legislation, not to reopen the debate. We cannot go backwards. Canadians across the country, and in particular in Quebec, are hoping for clarifications, but I think they will continue to support Bill C-7 much like they supported Bill C-14.

I think that Senator Dalphond’s amendment provides some clarity and certainty about the notion of mental illness, to assure people with illnesses affecting their cognitive abilities, such as Alzheimer’s or other forms of dementia, that they will be able to make a decision before they become cognitively impaired by their illness.

Many of you spoke about the letters they received, and one of the reasons I’m speaking today is that this issue is personal for me.

I’m probably the only one in this debate who has participated in the execution of a right to die. After we had passed Bill C-14, my sister-in-law was diagnosed with cancer. Part of her problem was that she could still reason.

The cancer had metastasized to her brain, and if she waited too long, it would take away her freedom to make her own choice.

After receiving her diagnosis in the summer of 2019, she decided to accept the fact that she was going to die, but she wanted to die with dignity. She wanted to do it in the way she wanted at the time she wanted.

We had passed Bill C-14, and she used the power that legislation gave her. We gave her that power. She could have waited according to her diagnosis. She could have waited to use her right to delay, but she had brain tumours, and as I mentioned before in French, wanted to exercise her rights. She would have lost cognitive function and the ability to decide. She was lucid and proud of her decision. Her husband — my brother — as well as her children respected her decision.

It was done in an atmosphere, as my friend Pierre said in his speech yesterday, with a little glass of wine in the morning. We were celebrating her life. Friends and family were in the room, and a few minutes before the execution of the decision, we were asked to leave the room. Only my brother and the children stayed in the room. Two minutes later, we walked into the room.

She had decided to exercise her right to die. It was not done in a clinical or cold manner; it was done with love. It was not a sterile medical act. It was an act of love, done and shared by friends, family and loved ones. She did it according to her will. She did it with a smile and with dignity.

She was not going to live, so she wanted to die on her own terms. That is what she did, and it remains one of the most touching moments of my life.

I voted in favour of Bill C-14, and I was proud to do so. At that time, I understood that this was a right that we could not deny Canadians.

My good friend Serge Joyal raised certain objections to Bill C-14. He said that the bill was not perfect, to which I responded that the perfect is the enemy of the good. If we had continued to debate the bill, it likely would not have been passed and my sister-in-law would not have had the right to exercise what is now a vested right.

I am saying that, yes, I will support certain amendments, but I want it to be clear that I will always support the bill, even if the amendments are rejected in the other place.

I support Senator Dalphond’s amendment, which points out that the exclusion of mental illness does not apply to people with neurocognitive disorders that would deprive them of the privilege of making their own decisions.

I want to thank everyone who has worked on this bill. You have done a wonderful job. This will probably be my only intervention. I am quite emotional on this issue since I have participated in the exercise of the rights given by this law. I’m still very emotional about it. Thank you very much.

The Hon. the Speaker pro tempore
[17:50]

In amendment, it was moved by the Honourable Senator Dalphond, seconded by the Honourable Senator Munson:

That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 3, by replacing line 6 with the following:

“ness, other than a neurocognitive disorder, is not considered to be an illness, disease, or disabili-”.

Those in favour of the motion who are in the Senate, please say “yea.”

The Hon. the Speaker pro tempore
[17:51]

Those opposed to the motion in the Senate Chamber, please say “nay.”

The Hon. the Speaker pro tempore
[17:51]

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion in amendment of the Honourable Senator Dalphond agreed to, on division.)

Hon. Pierre-Hugues Boisvenu
[17:52]

Honourable senators, during our study of Bill C-7, our committee heard more than 100 witnesses from every walk of life, who gave informative, enriching and often very moving testimony. Experts, families and associations helped us better understand certain aspects of medical assistance in dying and where Bill C-7 falls short.

Let’s not forget that the purpose of this bill is to correct the shortcomings of Bill C-14, which was adopted in 2016 even though it did not fully respond to Carter. In 2019, the Superior Court of Quebec decision in the Truchon and Gladu cases confirmed the need to review the medical assistance in dying legislation. I want to note that the Senate had already made recommendations in 2016 in the context of the study on Bill C-14 in order to avoid the situation we find ourselves in today.

Unfortunately, the government opted for speed over substance.

I have said in the past that medical assistance in dying appeals primarily to our personal values instead of our collective values, which makes our debates difficult, highly emotional and very moving at the same time. Passing such deeply human legislation is a major legislative challenge, especially when the right to die with dignity, which is guaranteed by certain sections of our Constitution, collides with religious, cultural or community values that do not recognize this right.

Ever since we embarked on this debate, it has been my hope that the passage of Bill C-7 would not leave other suffering individuals behind as Bill C-14 has done for the past five years.

In addition to the constitutional issue and Bill C-7’s other flaws, which I mentioned in my speech at second reading, I think this bill disregards the suffering of patients struggling with serious illnesses, including degenerative brain diseases such as Alzheimer’s and dementia.

When a person is diagnosed with a degenerative disease, massive uncertainty, confusion and insecurity take over their life.

Neurodegenerative diseases, also known as neurocognitive disorders, have an irreversible effect on patients. Their quality of life deteriorates slowly and painfully, and they experience a gradual loss of independence, both physical and mental. Loss of knowledge of oneself and of one’s condition is one of the most problematic aspects of brain degeneration. That is why patients with this kind of disease, which is both psychiatric and physical, must be given the option to make an advance or proxy request for medical assistance in dying.

Subclause 3.2 of amending clause 1 in Bill C-7 appears to open the door slightly to advance consent, but the conditions are poorly defined and don’t address the complexity of the situations experienced by people with neurodegenerative diseases.

Worse still, in the context of the bill before us, some witnesses pointed out that individuals with this type of illness could resort to suicide as a means of hastily ending their life for fear of losing the capacity to consent to MAID. This situation could cut their lives short by a few months or even a few years. Bill C-7 therefore imprisons these individuals by depriving them of their right to die with dignity surrounded by their families.

For instance, Alzheimer’s is a progressive disease that affects each individual differently. A person can live with Alzheimer’s disease for years without knowing when they will actually lose control of their cognitive abilities or when they will be unable to consent to MAID. Advance consent would allow such individuals to live with peace of mind, knowing that when the time comes, they and their families won’t have to endure the terrible suffering of late-stage Alzheimer’s. The bill maintains a grey area as to how such individuals could access medical assistance in dying, and the Minister of Justice has been clear that the bill doesn’t allow proxy requests.

It is therefore incomprehensible that the government didn’t introduce more comprehensive legislative measures with respect to neurodegenerative diseases when it had four years to draft legislation on this issue.

I was touched this week to hear testimony from many people who are affected by brain degeneration. Sandra Demontigny, a mother with three children aged 14, 18 and 22, received the crushing diagnosis of Alzheimer’s disease at the age of 39. This young 41-year-old mother and author of the book L’urgence de vivre : ma vie avec l’Alzheimer précoce decided to speak out to convince those responsible for studying MAID that it is important to expand the eligibility criteria. She wants people like her, who are diagnosed with an irreversible degenerative disease like Alzheimer’s, to be able to make an advance or proxy request for MAID. This way, they would still have the right to access MAID when the time comes even if they no longer have the mental capacity to make the request.

I want to share a quote from Ms. Demontigny about her father, who died from Alzheimer’s at age 53:

Near the end, he was lying in a hospital bed, restraints around his torso, legs and arms . . . . It was horrific. My brother and I can still see those images. We could see the agony in his eyes. He was frightened, distraught, he could no longer move, he no longer recognized anyone . . . . We can still hear the sound of him crying.

She also said:

I want to be able to give advance directives, I want to be able to say, “When I reach the point where I no longer recognize my children, I want to be given medical assistance in dying.” Sort of like a protection mandate . . . .

I was put in contact with Sandra Demontigny by Véronique Lauzon, a journalist with La Presse.

I had the privilege of speaking with this courageous woman about her journey, and I was able to offer my support for her efforts to ensure that the bill we are currently studying in the Senate meets the needs of patients like her.

Moreover, Quebec, which was preparing to amend its own law on medical assistance in dying to include advance directives, is currently waiting for the outcome of the federal government’s parliamentary work. The passage of Bill C-7 as drafted would be a step backwards for Quebec.

That is why I would like to move an amendment so that Parliament can review the act, within 90 days of Royal Assent, for persons with neurodegenerative diseases in order to make recommendations on legislative changes.

In closing, I want to send my best wishes to all families with a loved one suffering from this terrible disease. On behalf of Sandra Demontigny and everyone suffering from this disease, I plan to move an amendment to the bill in order to bring them hope.

I sincerely believe that a person receiving such a diagnosis has the right to choose when they want to stop living so that they can die with dignity, surrounded by their family.

I sincerely hope that Minister Lametti’s pledge to seriously consider the Senate’s amendments will not turn out to be mere lip service, as was the case when the first medical assistance in dying bill, Bill C-14, was passed in 2016.

If that is the kind of prison in which this bill will condemn these people and their families to suffer for years, with science powerless to do anything about it, it is our responsibility to find the key to set them free. I only hope that history will not repeat itself with this government and that it will not allow sick people to go on suffering for years while it ignores a right that the Supreme Court recognized in 2015.