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Criminal Code

Bill to Amend--Third Reading--Debate

February 9, 2021

Honourable senators, it is a privilege to speak to Bill C7 at its third reading.

Like many members of this chamber, I am deeply concerned about the health inequalities and human rights concerns that discussions of this bill have once again brought to light. While this bill, which is narrow in focus — it amends the Criminal Code of Canada — cannot adequately address these important issues, I hope that all of us in this chamber will continue to vigorously pursue effective remedies to these challenges, such as improving the lives of persons with disabilities and investing in better care for those living with a severe and persistent mental illness.

I will focus my remarks on the mental illness exclusion clause and will propose an amendment at the end of my speech. I believe the application of a sunset clause repealing the exclusion clause 18 months after receipt of Royal Assent for Bill C-7 is necessary.

I did not decide to challenge this clause lightly. I have spent over 30 years taking care of people with severe and persistent mental illnesses, and teaching hundreds of others to do the same. I have spent many sleepless nights because I was worried about my patients and their families. I have competently assessed the decisional capacity and suicide risk of thousands of people. I have also fought countless battles with administrators, physicians, governments, funding bodies and others to champion the rights of those with a mental illness to be respected, not discriminated against, and treated similarly to those with any other illness. I also have my own personal story, with all its joys and tragedies. The fact that I am private about it does not mean I do not have it.

There are two main reasons to amend this clause, and I will address each in turn.

First, mental illness is not defined in the bill, thus raising serious clinical and regulatory challenges, including the threat of criminal liability for MAID providers.

Second, the exclusion cause is stigmatizing, discriminatory, and thus likely unconstitutional.

First, a definition of mental illness is not contained in the bill, and this is unacceptable. Without a clear and rational definition of mental illness, this provision will be open to multiple different interpretations, cause confusion for clinicians who provide MAID and will compromise the ability of medical regulators to do their work. With multiple interpretations, patients seeking MAID may be compelled to travel to parts of the country in which the interpretation used by providers better fits their needs. Patients with the same condition within one province or territory may be considered eligible or ineligible depending on how any individual practitioner defines mental illness.

Persons with neurocognitive disorders, such as dementias, could be denied assessment for MAID. International diagnostic systems such as the Diagnostic and Statistical Manual and the International Classification of Diseases consider these to be mental disorders, and persons with them are frequently treated by a health care team of which psychiatrists are often in the role of the most responsible physician. The same goes for patients who have other somatic conditions such as fibromyalgia and chronic pain. With this exclusion clause, persons with these and other conditions could be denied access to a MAID assessment.

The only source of an authoritative definition of a term not explicitly defined in the legislation is the courts. This takes time, it is very expensive and favours those with the resources to litigate. This is unjust.

Finally, with regard to definition, without clarity, clinicians carry an exceptionally heavy burden, facing the threat of criminal liability based on getting it wrong while having no idea what wrong is. Provincial and territorial colleges also won’t know what definition to use when regulating and disciplining, which could potentially undermine the professional standards and safeguards that have been put in place. That all would be a travesty.

Second, the mental illness exclusion clause is stigmatizing, discriminatory and, thus, likely unconstitutional.

In the circumstances of the removal of the reasonably foreseeable death eligibility criteria for persons whose profound suffering arises from physical disorders or from combined physical and mental disorders, it would be discriminatory and, thus, unconstitutional to exclude persons whose sustained profound suffering arises solely from mental disorders.

The Canadian Psychiatric Association in their brief on November 2020 noted the exclusion clause:

 . . . propagates a false distinction between mental health and physical health, and the impact will be increased stigma for those who live with psychiatric illnesses.

The Canadian Psychiatric Association’s brief went on to call this clause “vague, arbitrary and overbroad,” evoking a breach of section 7 of the Charter. The Association des médecins psychiatres du Quebec stated it was unjustified on clinical grounds and called attention to the inconvenient truth that this bill permits MAID for those have a mental disorder co-morbid with another illness, such as depression and Parkinson’s, but denies MAID for those who suffer from a sole mental illness. This, in the absence of any demonstrable justification, speaks to probable failure to meet the test under section 1 of the Charter.

MAID is not about what diagnosis a person has. It has been developed and implemented to recognize the autonomy of Canadians who decide to relieve their intolerable suffering associated with a medical condition when they can no longer go on and where all legal criteria for MAID are met.

Intolerable suffering is a subjective personal experience. It cannot be negated or delegitimized by anyone else’s valuation of that suffering, no matter who that person is — and that includes health care providers.

Let me be very clear: Irremediable and intolerable suffering is person-specific and necessarily subjective. It is not diagnosis-dependent.

Persons who have intolerable suffering from a mental disorder do not have a second-class type of suffering. Their suffering must be taken just as seriously as we take the suffering of those who request MAID for any other medical condition.

The Canadian Psychiatric Association, in their position paper of February 2020, stated:

Patients with a psychiatric illness should not be discriminated against solely on the basis of their disability, and should have available the same options regarding MAiD as available to all patients.

The Association des médecins psychiatres du Québec and the Ordre des psychologues du Quebec concluded that persons with a mental disorder as their sole underlying condition should be entitled to access MAID, similarly to persons who have enduring and intolerable suffering that is based on a physical disorder or on a physical disorder co-morbid with a mental disorder, provided they fulfill all legal criteria.

Let’s be clear on this stigmatizing and discriminating reality. With Bill C-7’s exclusion clause, a person with a physical illness plus a mental illness who is suffering intolerably but may have years to live can choose MAID, while a person in the same situation who has a mental illness alone cannot even ask for their suffering to be relieved.

The overwhelming weight of opinion from constitutional experts that we have heard has noted that the mental illness exclusion clause is unconstitutional and contravenes both section 7 and section 15 of the Charter and it can’t be saved under section 1. They have pointed out that Carter did not exclude persons with a sole mental illness from receiving MAID, and the Supreme Court of Canada judgment was followed by other cases in which this was argued and upheld.

In my opinion, the Senate should not try to anticipate what the courts will decide, but surely our role is not to intentionally pass legislation that would force people into court again because we did not sufficiently take Charter rights into consideration and because we ignored what the courts already ruled. Mental illness exclusion was before the court in Carter, and the court ruled against it. It also accepted the competency of physicians in this domain:

. . . it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity.

In the case of E.F., it was argued that those with psychiatric conditions were expressly precluded from MAID, and the Alberta Court of Appeal rejected that argument. This was repeated once more in Truchon and again rejected. None of these cases were appealed to the Supreme Court. Yet here we are with the government trying once again, this time through Bill C-7, to exclude mental illness as a sole underlying medical condition, in contrast to all the courts who have already ruled otherwise.

Yesterday, Senator Woo argued that the Senate can’t prejudge, and we need evidence. We already have both solid judgments and voluminous court-tested evidence on this area. We are not sailing in uncharted waters.

Colleagues, many of us believe we have a duty to address and revise legislation that we consider violates the Charter, especially when we have the weight of evidence before us.

Now I will address the sunset clause period. Eighteen months allows for a number of necessary initiatives to be undertaken. As raised during the study of Bill C-7, it became apparent that the data currently being collected by Health Canada on MAID must be substantially improved. This includes, as Senator Jaffer has argued, data that must be available to permit race-based analysis. Health Canada must consult with participants from various communities, disciplines, cultures and locations and those with expertise in both qualitative and quantitative methods. Eighteen months would provide time for this consultation.

During committee study, a few concerns with assessment processes were raised. Yet expert psychiatrists and leading national educators, such as Dr. Donna Stewart and Dr. Justine Dembo, who actually perform MAID assessments, vehemently and empirically opposed this opinion. Speaking now as a previous examiner for the Royal College, I am confident that psychiatrists who conduct MAID assessments certainly do have the ability to assess decision-making capacity and suicidality in persons with mental disorders who are seeking MAID. As the AMPQ has clarified:

Assessing capacity and suicide risk are fundamental clinical skills shared by all psychiatrists. This is not a matter of opinion.

Actually, this is a matter of fact. Indeed, assessment of decision-making capacity and suicidality is part of the Royal College of Physicians and Surgeons of Canada’s training requirements for all psychiatrists. One cannot qualify as a psychiatrist without these competencies.

However, better comfort in these competencies for all MAID assessors would be welcomed by Canadians. This can be accomplished through an accredited professional development program. An 18-month sunset clause would provide enough time for this to be developed, accredited and made widely available. This would help support the standardization of MAID assessment and provision across Canada.

I am pleased to be able to inform this chamber that a national MAID training program, to be accredited by the Royal College of Physicians and Surgeons and the College of Family Physicians of Canada, is already being organized. I understand it will be informed by best available evidence on all aspects of MAID assessment and provision, will ensure attention is given to issues relevant to mental illness as a sole underlying condition, incorporate Indigenous perspectives and practices and be culturally contextualized and safe. The national umbrella organization for medical regulators has been invited to participate.

Furthermore, since the Criminal Code of Canada is not an appropriate place to regulate delivery of health care, this clause would provide provincial and territorial governments time to initiate the development of Bill C-7-related professional standards and safeguards for MAID assessment and provision. For example, in Quebec, the AMPQ has already proposed additional safeguards. This would also provide time for the promised parliamentary review. Respect for the Charter rights of persons with mental illness should not be left dependent on the timing and political challenges of starting and finishing a parliamentary review. The burden must be on Parliament, not on individuals. The sunset clause puts the timing and the burden where it should be — on Parliament.

In sum, we can recognize the concerns that have been raised. We can respond with effective measures established where they constitutionally belong — outside the Criminal Code and at the provincial/territorial level — and we can avoid lending weight by this body to the stigmatizing and discriminating language and the effect of the mental illness exclusion clause.

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