Moved third reading of Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2.

He said: Honourable senators, I’m very pleased to rise at third reading debate on this bill. I will not repeat or reiterate all the points that I raised previously as part of my second reading remarks.

Honourable senators, permit me to briefly address certain elements we’ve been hearing in debate so far.

First, colleagues, there is no court decision pronouncing on our current medical assistance in dying, or MAID, regime or requiring Parliament to expand eligibility. The courts have not declared that there is a constitutional right to MAID based solely on mental illness. There is no pre-existing constitutional declaration by a court.

From 2015 to 2016, once the Supreme Court of Canada in Carter had declared that the Criminal Code prohibition on assisted death infringed on the Canadian Charter of Rights and Freedoms, but while the court had suspended its declaration of invalidity for one year, applicants had to petition courts for access to MAID because a legislative solution had not yet been adopted. During that year, applicants were not seeking to establish a constitutional right to MAID based upon their specific illness. Rather, the courts were applying the constitutional decision that the Supreme Court had already issued in Carter.

In Canada (Attorney General) v E.F., 2016 — the Alberta Court of Appeal decision to which Senator Simons referred in her remarks yesterday — the Alberta Court of Appeal granted assisted death to applicant E.F., who suffered primarily, as was noted, from a psychiatric illness and whose condition was arguably not terminal. While some may claim that the case supports the right to MAID based primarily on a mental illness, the Alberta Court of Appeal was narrowly dealing with how to apply the Carter ruling while awaiting government legislation.

The court specifically declined to rule on the constitutionality of the eventual legislative framework, and I quote from the court:

. . . Moreover, although draft legislation, in the form of Bill C-14, is currently in the legislative process, there is no legislation that is the subject of constitutional review. Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.

Colleagues, the Government of Canada committed to expanding MAID eligibility to individuals with mental illness as the sole underlying medical condition because it believes that’s the right thing to do. Nevertheless, I want to make it clear that the government does not believe this is the only option available under the Charter. It does not believe that there is a constitutional basis on which the courts should be able to exempt individuals from the prohibition on MAID under those circumstances. Nor are the courts in a better position than practitioners to carry out assessments under the complex circumstances that may surround a request for MAID based solely on mental illness.

I firmly believe that the existing MAID regime — which we passed over time in this chamber — is consistent with the Charter, and I think it will continue to be so with Bill C-62.

Canada’s MAID framework seeks to balance a number of competing interests and societal values protected by the Charter, such as the right of individuals to make end-of-life decisions, the protection of vulnerable people and the necessity of viewing suicide as a mental health issue.

The Supreme Court of Canada has acknowledged the difficulty of Parliament’s task in legislating in this area and has indicated that Parliament’s choices on how to balance the competing interests would be given a high degree of deference were it to arise before a court. The difficult question of whether to permit MAID for mental illness is one that can be answered in different ways in conformity with the Charter. The Charter does not mandate or require one specific response.

However, in the case of Bill C-62, I strongly believe that the government has selected a precise policy response that would receive a particularly high degree of deference from the courts. The premise of Bill C-62, colleagues, is not that MAID will be denied for Canadians suffering from mental illness as a sole underlying condition. The premise is that MAID will be permitted, but that the implementation of the exemption must be governed by principles of prudence, precaution and good health care governance in close consultation and collaboration with provinces, territories and stakeholders. In this context, I am strongly of the view that the courts would endorse Bill C-62 as a valid and reasonable choice by Parliament for all of the legitimate reasons that have been given.

Second, Bill C-62 did not come into existence arbitrarily. This bill reflects the practical need for time to ensure the safe and secure implementation and oversight of MAID where mental illness is the sole underlying condition. None of the objections are ideological in nature, and suggestions to the contrary are simply, with respect, inaccurate.

Colleagues, it bears repeating that not one provincial or territorial government says that they are ready. These are duly elected representatives from across ideological spectrums, including Liberal, New Democratic and Conservative governments that are best positioned to make decisions on the adequacy of their health care system. They are accountable and responsible for the decisions that they make in the delivery and implementation of health care service. They support the need for an extension. The Government of Canada said that it would work in a collaborative way, as it has done throughout this process, and will continue to do so.

Cooperative federalism is not just a phrase that we trod out to embellish an argument. It means something, especially in a federation with divided responsibilities — as we have in this one — between criminal law, which is exclusively federal, and provincial law, which has exclusive jurisdiction over health.

Cooperative federalism requires governments and stakeholders to come together to develop a path forward in this particular area, as in many others. With the deadline looming, the House of Commons introduced and passed Bill C-62 with a significant majority in order to provide the time requested so that provinces, territories and stakeholders could be ready. Colleagues, I have every confidence that the government will be held to account on this.

Bill C-62 also provides for the re-establishment of a special joint committee with special consideration on the issue of readiness and preparedness within two years of Royal Assent. This means, if I may just open up the paragraph, that we don’t have to necessarily wait two years to strike the joint committee. It could be struck earlier than that, but no later than two years from Royal Assent so that there is a full year, at least, for the work to be done, the responses to be submitted and considered by both houses of Parliament.

Again, in this process, the government will have to speak, explain itself and be accountable for the state of readiness when the time comes for the committee to be reconstituted, and it will be up to Parliament — including the Senate — to resume this work.

Once again, Bill C-62 is about process, prudence and good governance.

It is not meant to relitigate the merits of MAID where mental illness is the sole underlying medical condition. This bill is about giving the health care system the time requested by the provinces, territories and trained professionals to be able to provide the service safely, across the country.

The three years proposed in Bill C-62 are meant to help ensure that practitioners are prepared to appropriately assess MAID requests in cases where the person’s sole underlying medical condition is a mental illness.

The Government of Canada has been working closely with the provinces and territories and with stakeholders to support health system readiness in preparation for the lifting of the temporary exclusion of MAID eligibility for persons suffering solely from a mental illness.

Among the $200 billion announced by the government to improve health care for Canadians, $25 billion over ten years in new funding is notably set aside to increasing mental health and to address substance abuse issues. The Minister of Health has already signed bilateral agreements with British Columbia, Alberta, Ontario, Nova Scotia, Prince Edward Island and the Northwest Territories. These agreements include targeted and very specific measures with regard to mental health.

The federal government is committed to a measured, thoughtful and compassionate approach to ensure Canada’s MAID system meets the needs of people in Canada, protects those who may be vulnerable and supports autonomy and freedom of choice of individuals. The government will continue to work with the provinces and territories, with medical professionals, with people with lived experiences and other stakeholders to support the safe implementation of MAID, with appropriate safeguards in place to affirm and protect the inherent and equal value of every person’s life.

Honourable senators, the divergence of views that we hear in this chamber reflect the divergence and polarized views amongst Canadians. There are individuals who are experiencing intolerable suffering, with years or possibly decades of failed treatment attempts and no apparent means for relief. All of us know someone in that situation, and our hearts go out to those who are in these situations. Yet, more regrettable is refusing delivery of care, not because their suffering isn’t real but because the system and the subset of supports are simply not adequately equipped.

As has been pointed out by colleagues, this bill affects a marginalized group of Canadians. I agree. Allow me to point out that should Bill C-62 not pass, we’ll be responsible for pitting one group of marginalized people against another group of marginalized people based on geography. Jurisdictions that are ready for the expansion will accept MAID applications. Those suffering in other jurisdictions may not have an opportunity to even submit an application. That creates a significant inconsistency within the system and in the context of a criminal law that is supposed to grant rights and protections to all Canadians across the country. We are not the United States. Criminal law is not a state responsibility; it’s a national responsibility.

It’s essential, colleagues, that there is confidence and consensus amongst mental health professionals that MAID, in these circumstances, can be assessed and delivered safely across this country. The consequences are enormous. The consequences can be permanent.

As Senator Dalphond legitimately pointed out during our debates a few weeks ago, failure to pass Bill C-62 before March 17 would generate a real legal limbo. It’s not an abstraction. On March 17, if the bill isn’t passed, access to MAID will be legal, whether or not the systems are in place to support those seeking it, support those charged with assessing the cases. In such a case, it is the most vulnerable who will pay the price.

I hope that these remarks provide further clarity for the position that the government has taken in support of this. I would again respectfully ask for your support in passing Bill C-62. Thank you so much.

Would the Government Representative take a question?

Of course.

I’m refreshing my memory of the E.F. case, and I want to quote from the judges’ unanimous decision. This is a different quote than I used last night:

As can be seen, in Carter 2015 the issue of whether psychiatric conditions should be excluded from the declaration . . . was squarely before the court; nevertheless the court declined to make such an express exclusion as part of its carefully crafted criteria. . . . Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.

With the understanding that this was a decision in that legal limbo time before Bill C-14 was passed, do you not find the Court of Appeal’s unanimous decision to be any kind of precedent in terms of establishing a constitutional right, a Charter right, to medical aid in dying?

Thank you for the question. I appreciate the care you’ve taken in analyzing the opinion.

It is to your credit.

The short answer is that it doesn’t establish a constitutional right.

I’m going to get pedagogical, and I apologize. It is a basic principle of legal interpretation, much less constitutional interpretation, that cases have to be understood in the context of the factual and other circumstances before it, and the Alberta Court of Appeal, properly so, was clear that it was dealing with this period of time when what had been established was the right to have access to MAID notwithstanding that death was not imminent. That was the issue. Everything else was less material to their decision.

They granted an exception in this case. The case happened to be one where the person suffered primarily from a psychiatric illness, but it did not establish a constitutional right for the very simple reason that Parliament subsequently enacted legislation that excluded it.

We have subsequently amended that legislation in the Senate to include a legal right, as I said in my remarks, because we think it’s the right thing to do — not everyone does, but this government does and the Senate did — with a period of time to get ready. So, until such time as that period lapses, there is neither a court nor Parliament that said there is a constitutional right for access on mental illness.

I’m sorry. That was a bit of a long explanation, but I hope it clarifies things.

Both in your speech and just now in your answer to my question, you stressed the fact that E.F.’s medical condition was primarily psychiatric. I’m a bit confused by your wording here because I’ve never seen anything — and I covered the case as it happened in Alberta — that suggested there was anything other than a psychiatric condition.

Thank you. I wasn’t trying to muddy the waters. What I’m saying is that, in a way, the actual nature of the condition before the court in E.F. was not relevant to the decision they had to make. All they had to work with was the fact that the court in Carter had said it is unconstitutional to limit access to only those whose death was reasonably foreseeable, or imminent, to use the Quebec language.

In the framework of that, while there was this period of time where a constitutional right had been recognized by the Supreme Court, there was no legislation. Therefore, strictly speaking, the law that had been declared unconstitutional was still in effect. The court was seized with the challenge of giving effect for the individual applicant of the right that Carter recognized that you don’t have to be at death’s bed in order to qualify. But everything else was — if you pardon the Latinism — obiter dicta. It was not part of the fundamental decision.

The fact remains that they were deciding whether or not someone, in the context of the Carter-recognized right, which had no limitations on what kinds of illnesses — and they made their decision, but it does not stand for the proposition that the court has recognized a constitutional right of access to MAID solely on the basis of mental illness. That is just not how the Supreme Court or any court jurisprudence actually works.

I hope that answers your question.

Will Senator Gold take another question?

Yes, of course.

Thank you. Senator Gold, this bill promotes inequality in access to medical care through its blanket exclusion, which allows any province to deny access to this medical intervention to people living in another province, even if that province is already ready to provide it. Now, equality cannot depend on other people being ready to accept it.

Could you explain to us why the government created a blanket clause that can be used to delay some Canadians’ access to this health care simply because someone else says they’re not ready, as opposed to putting in a different frame of reference which would allow provinces to move ahead when they’re ready? Because there are provinces that have already said that they’re ready.

Thank you for the question. Let me make a few points.

The prohibition against medical assistance in dying for those whose sole underlying condition is mental illness is one found in the Criminal Code of Canada, which applies to all Canadians from coast to coast to coast. Therefore, exemptions or changes to the Criminal Code will necessarily have the effect of changing the circumstances, the legal rights, the legal obligations and, indeed, the legal protections for Canadian citizens, and that is not something that you typically find in the Criminal Code when you’re dealing in areas of exclusive jurisdiction — which is the criminal law — and in the face of a situation like this of such a moment.

The first point is that a national criminal law in Canada means a national criminal law, and it is not one that is to be opted into or opted out of in circumstances such as what we’re dealing with.

The second point is that I know, Senator Kutcher, that you believe and have asserted strongly that some provinces say they’re ready, but there is no health minister in any province or territory who does not support this extension. There are clinicians who say they’re ready. There may be regulators. I know there are academics, and there are certainly senators, but there is not one province or territory whose health minister says they are ready.

With all due respect, senator, it is not the case that some provinces are ready. All the provinces, perhaps for different reasons — including the most progressive provinces who have done the most to be ready in many regards — still say they need more time to do it safely, securely and properly.

Finally, there are many different ways in which parliaments can choose to legislate in matters of policy, so long as they respect the contours of the Constitution, which Bill C-62 fundamentally does, colleagues. Parliament then has a choice as to how to proceed. It proceeded on the basis of the integrity of the criminal law, respect for the provinces and territories and their exclusive jurisdiction and accountability to their citizens for the administration of health care.

I could go on at much greater length on the meaning of equality in our Constitution. If I had any reputation as an academic, it was for my research on equality rights and my training of judges on equality rights, and I continue to teach that subject. I will be giving a lecture on it next week at the University of Ottawa Faculty of Law. That is in my capacity as a senator or as an academic. As Government Representative, I recognize that when I speak, it is on behalf of the government, and I’m not going to trade on that.

No matter what hat I wear, I am convinced that this is not an unconstitutional bill, and in that regard, I believe it’s important for us as senators to have some respect for the policy choice this government has made in light of the reasons I’ve given.

I’m sorry for the length of my answer.

Please don’t be sorry for the length of your answer, Senator Gold. Speaking as a physician and a professor, it’s an occupational hazard. We’re all in the same boat.

Let me get back to one of the points you just made. Your memory may be better than mine, but it is different than my memory regarding the letter that has been bandied about. We’ve been told that all the provinces support this. I’m going to speak on my own behalf as a senator from Nova Scotia.

My reading of that was that Nova Scotia did not say it wasn’t ready. It said it didn’t object to others being given more time. That’s a really important nuance. It is a very important nuance.

The regulator for Nova Scotia, Dr. Gus Grant, testified at the Special Joint Committee on Medical Assistance in Dying that the regulators are ready and also that Nova Scotia was ready. The people that run the MAID service in Nova Scotia, Dr. Gubitz and Dr. Holland, testified — and Dr. Holland actually spoke to the CBC about this. The brief that came from the psychiatric community that does this work in Nova Scotia was clear that they were ready. The issue wasn’t that Nova Scotia said it wasn’t ready; it was just that it didn’t object to others being given more time.

I’m curious, did the Government of Canada let the Government of Nova Scotia know that they were going to implement a blanket clause, a blanket exclusion, thereby denying Nova Scotia citizens their right to access this kind of medical intervention?

Thank you for the question and for the elaboration of the situation in your province. I’m not privy to all the discussions that took place with the ministers of health, in particular with Minister Holland and his counterpart in your province, over the course of their discussions.

But what is before us, colleagues — if I might remind us — is that we’re not debating the joint committee report, and we’re not debating the letter that was submitted by many of the provinces. Nor are we debating the position that the Province of Quebec took when it legislated against expanding medical assistance in dying, nor are we debating the positions of Newfoundland or British Columbia, which didn’t sign onto the letter but have expressed their support.

We’re debating Bill C-62, which is a government bill proposing a three-year extension so the provinces and territories can do what they feel they need to do to be ready to offer it safely and consistently across the country.

Again, the removal of the criminal prohibition has to be done on a national basis; otherwise, the integrity of our Criminal Code is compromised. It’s not simply the abstract question of the integrity of the Criminal Code. It will have real-life consequences across this country.

Yes, Senator Kutcher, it’s impossible not to always remind ourselves that there are consequences for this extension. For those who are suffering and who are waiting for the ability to be assessed for MAID, that is going to be terribly disappointing, and those words don’t come close to it.

I’m not indifferent. None of us are indifferent to the consequences of this decision. On balance, the Government of Canada, supported by all provinces and territories — and supported by many in the medical profession and in the institutions responsible for delivering medical care to Canadians — believes for all of those reasons that the prudent, responsible path forward is to extend the sunset clause for this period of time with the parliamentary review in place so that governments can be held to account for the work that they are required to do so that the system is ready.

Thanks very much for your speech today, Senator Gold.

First of all, on E.F., every time I’ve seen this case referenced and in dealing with that case being referenced for several years, I have consistently seen it referred to as the patient in that case having a rare illness that was both physical and psychiatric in nature. It is often referred to as that.

As to my question, Senator Gold, I’m asking you to put your constitutional law professor hat on right now, because maybe it would be helpful for senators in this chamber to have just a little explanation of the difference between a ratio of a case, the binding principles of the case, and the obiter dicta of the case.

You briefly referenced it, but I think it would be helpful for senators to understand that, because there are certain parts of the case that are just obiter dicta. It’s interesting. That’s what the court said, but it doesn’t have the same precedential value as the ratio, the binding principles of the case. I would ask you to explain that.

Thank you.

Senator Batters, be careful what you ask for.

I’ll be brief. In the common law tradition — and this goes back hundreds of years — law was not typically made through statutes. It was through the accretion of cases that would decide things and out of which one might distill after the fact — often after the fact — some animating principle. That is distinct from the civilian tradition, which is also an important legal tradition, where things tend to be codified and then results are said to follow from the laws.

This approach required judges, in looking back at the precedents, to understand what was actually decided because, after all, a case where John and Bob argued over a tree on their property and Bob was awarded damages has to apply to people who aren’t named Bob and John and perhaps even to things other than trees. So there was a process of trying to separate the actual ratio decidendi — the reason for the decision; the kernel of principle that would survive the factual differences of the case — and all the other discussions, helpful and interesting though they may be, which were said to be incidental to the actual decision.

When you translate that into the Constitution and making due allowances for the fact that our courts have treated our Constitution as an evolving, living tree — so courts change their minds — it is still the case that cases only stand for the basis of their decision. In so many cases, you will find judges — especially in the Supreme Court, but lower courts as well — venturing opinions that are important to take into consideration and may very well prove to be illuminating in subsequent cases but, strictly speaking, are not the decision.

Lower courts in Canada — whether provincial courts, superior courts or courts of appeal — also have rules about what binds them and what they are not. So when the Supreme Court decides a case, it binds all lower courts. The question is what did they decide?

It’s true, by the way, for the Court of Appeal. When the Alberta Court of Appeal decided that case, it would bind the court of first instance in Alberta. But in every case you have to decide what the actual basis was for the decision and what was incidental to it.

In that regard, in my reading of this case, what was fundamental was that the person was suffering terribly from an irremediable — or at least judged to be by the judges — condition, but death was not imminent, and that was the framework within which the decision was made. The rest of it was not unimportant, but, strictly speaking, not the decision.

I hope that explains it. I’m rusty on this stuff, but that’s the best I can do. Thanks for the question.

My question is for Senator Gold. One of the arguments you put forward in your speech talked about how much money the government was spending on mental health issues and services. I’m wondering if that’s probably not relevant to the argument here — if not counterproductive to the argument — because my understanding about MAID, especially with regard to those whose sole condition is mental illness, is that we’re talking about it being irremediable. So it’s not about how much money we spend on it, how much on the person or how many services they receive — that’s irrelevant.

It sounded to me — and correct me if I heard you wrong — we can delay this part of MAID because we’re going to spend more money and provide more services to people in the next three years. Did I understand you wrong on that?

Thank you for the question. Let me simply say that no, it is not part of the argument for extending the sunset clause that more money is going to be spent. It is simply in response to legitimate concerns that have been expressed here and that we all share that, frankly, the supports to people who are suffering from mental illness are not fully available to many Canadians. We focus — properly so — on Indigenous communities, for example, or on rural communities. But it’s true in my city of Montreal, and it’s true in your city of Toronto and elsewhere.

As I said yesterday in response to a question, our system will never be perfect. We’re not waiting for a perfect system. That’s utopian. My reference to the money was simply to show that the federal government is doing its part by working with the provinces to provide support to the provinces for the provinces to do what they feel is necessary before they’ll feel ready to provide whether it’s suicide prevention resources for people.

Look, we heard yesterday in one of the speeches that in one of the countries in Europe, there were — I think it was from Senator Miville-Dechêne, and correct me if I’m wrong — 1,500 applicants, of whom only 5% to 10% — of 1,500 people, over 1,000 people are going to be told they don’t qualify. Yet by definition, they have presented themselves by saying, “I have suffered so intolerably; I want to end my life.” I know people like this, and I know they don’t qualify.

I have very first-hand experience of telling somebody having dealt with — I didn’t mean to get personal here. Fortunately, that person had support in family, resources and the means to cope with the decision that their hope to end their suffering would be alleviated. But provinces are saying, “We’re worried about how we handle these people whose hopes will be dashed — that’s not the right word — who will be ineligible.”

I’m sorry, it’s again a long answer.

More resources need to be placed, whether we’re talking about MAID for mental illness or not, in mental health. The government is doing its part. I hope the provinces are doing their part. That’s just part of the supports we as a society need so that people can make the decisions, fully supported in all respects.

Briefly, as I see it, the money that you mentioned is really a separate thing from MAID unless provinces could use that money to help them prepare for being able to provide MAID?

The money that typically the federal government gives to the provinces is without conditions because it is exclusive of federal jurisdiction. The provinces are free to invest the money as they do. Some provinces, quite frankly, take health money and don’t spend it on health. That’s not right.

In the bilateral agreements with the Government of Canada, there are areas that are targeted and negotiated, and they include mental health support in some of those bilateral agreements. In that regard, the provinces have committed to spending a certain amount of what they get in these bilateral arrangements on mental health, but they are free to spend the rest of the money they get — if it’s not the subject of a contractual obligation that they’ve undertaken, the money they get each and every year in federal health transfers or in equalization payments, they can spend it on health care, on education, on roads or whatever their priorities are within their jurisdiction.

Senator Gold, will you take another question?

Yes, of course, senator.

Senator Gold, you have talked about it already in your speeches and the ministers already did provide some answers on it, but I would like you to elaborate. I need to better understand what the rationale was for the choice of three years? Why not two? Why not one? Why not two and a half? I know for us in Parliament that three years may not seem like a long time, but for individuals living with mental illness — and some of them have been counting the months until March 17 — they want to know more details. Why exactly do you think that we need three years, and what will be done? I need to have actionables, quantifiables. What is the plan? Why does it take three years?

Thank you. That’s a very good question. I tried — and perhaps I wasn’t as clear in my second reading speech, and I don’t have it in front of me and I would not take time, so let me try to be brief in my response.

The three years were chosen for several reasons. Provinces are at different stages of readiness, as the minister acknowledged. It was thought prudent to choose a period of time when we could be reasonably sure that there is enough time for the provinces to get ready and enough time to evaluate that with the re-establishment of the joint committee. There are more particular reasons as well.

I spoke yesterday about the take-up of the clinical program and how 1,100 clinicians across the country have enrolled, but only some dozens have yet been fully trained. More will come, of course, in some time.

I have talked about the need for proper oversight. I have talked about the need for guidelines that are more granular to ensure there is consistency within and across jurisdictions. We also talked about Indigenous communities that, as I mentioned yesterday, are beginning engagements, consultation and discussions — not all of them yet — with the federal government on this very sensitive issue in their communities. Indigenous-led projects are under way.

I also talked about data. We have only recently gotten 2023 data on MAID generally. Typically, these are Track 1 cases. It is being analyzed — or it is at least in the process of being analyzed. We have been advised that additional data on Track 2 and how the system is responding will be very helpful to understand the impact of MAID and the differential impact on different communities. This is disaggregated data. Colleagues, it was not that long ago that we bemoaned the lack of disaggregated data anywhere. We also know that one of the challenges in this area of divided jurisdiction has always been that the provinces are responsible for providing the data, and it doesn’t always come in at all or in the same form, and it’s hard to translate between that.

There are many reasons, senator, that the three-year period seemed like the safe and prudent one to ensure, and it runs the gamut for all of the reasons that the provinces, territories and clinicians have told us they need more time. I hope that is the beginning of an answer to you.

Honourable senators, I’m rising today at third reading of Bill C-62. It is important to note that this bill did not have the support of any of the Bloc Québécois members in the other place.

As we all know, this subject is of the utmost importance and it raises many issues. It is an emotionally charged subject for everyone. I won’t repeat everything that was so eloquently expressed by our colleagues yesterday, but I’ll just highlight a few points.

Incidentally, not only did I work in palliative and end-of-life care for 35 years, but I was also part of Quebec’s MAID implementation committee in 2015-16.

Bill C-62 seeks to extend by three years the exclusion from eligibility for medical assistance in dying for people whose sole underlying medical condition is a mental illness. In other words, this bill would deny people with mental disorders access to end‑of-life care.

The government gave three reasons for this. The first is that we’re not ready. The second is that there are not enough psychiatrists who are trained in MAID, and the third is that there is no consensus among health care professionals.

With regard to the first reason, that we are not ready, in her brief to the Special Joint Committee on Medical Assistance in Dying, Dr. Stefanie Green stated the following:

There is readiness at the federal level, there are provincial, territorial and regional initiatives that have occurred and continue, and there is preparedness of the medical and nursing regulatory bodies as well as professional associations.

Let’s look at the second reason, which is that not enough psychiatrists — only 2% — have received MAID training. According to a previous report by the commission on end-of-life care, there were 350 physicians practising MAID in Quebec in 2017-18. That’s 1.7% of all doctors in Quebec. If we have 1.7% of the physicians and 2% of the psychiatrists, do we need more?

Let’s look at the third reason, which is the lack of consensus among health care professionals. I would say there is no consensus on quite a few medical practices. Hormone replacement therapy for post-menopausal women and organ transplants are just two examples of that. Lack of consensus does not mean those practices are banned, though.

Looking back to 2015 and 2016, governments were so eager to institute MAID that they did so despite clear disagreement among health care professionals. Where’s the consensus? At the time, directors of professional services in health care settings struggled to find doctors willing to practise MAID in their communities. Doctors were trained as needed. MAID was instituted anyway.

The number of physicians providing MAID has increased over the years. Successive annual reports by Quebec’s commission on end-of-life care show that the number of physicians providing MAID and even the number of MAID cases per professional have been growing.

I don’t want to bombard you with facts and figures. It wouldn’t be very relevant today, since these professionals have incorporated this practice into their daily routine. They choose to give it one, two or three days a week of their time. Since physicians have three or four areas of practice, it amounts to intermittent half-days. It’s highly variable. Very few doctors work exclusively in MAID full-time. Therefore, the argument of too few psychiatrists does not hold water.

Honourable senators, there’s no need to give you a rundown of the MAID eligibility criteria in general. You know them all. However, we can’t forget that a request for MAID does not automatically make a person eligible for it.

In other words, making a request for MAID does not automatically guarantee eligibility to obtain MAID.

All these criteria for MAID in general also apply to people whose sole reason for applying is mental illness. During our debates on MAID, one gets the impression that broadening the scope is seen as a rubber band stretched to encompass a new group, namely people whose only medical problem is mental illness. These people have the same rights as the rest of the population. They were simply excluded.

I’m not saying that we should proceed as we did in 2015-16, and it is all well and good to ensure that professionals are ready. However, they are ready now. The training received by professionals addresses some of the legitimate concerns raised by mental illness. We understand that assessing mental illness is more complex and requires better supervision and stricter, more robust guidelines.

Depending on the underlying mental illness, we may be faced with acute situations, such as a suicidal crisis or a psychotic break, associated or not with a state of structural vulnerability because of precarious housing or poverty.

In that regard, as I said earlier, the health regulatory bodies have done their job as requested by the Government of Canada by developing training modules for professionals and establishing standards of practice, in short, everything needed to ensure that care providers are ready to ensure safe end-of-life care.

I know that all of us are afraid of any excesses, of the slippery slope, when it comes to MAID in general, but that fear is even more pronounced when it comes to mental illness. This is why even more robust criteria are needed.

That being the case, I want to share some testimony from the Collège des médecins du Québec, outlining benchmarks that reflect just how robust the criteria must be.

There are five criteria to ensure safe delivery of MAID. First, the decision to grant MAID to someone with a mental disorder should not be viewed solely as an episode of care. Rather, the decision should be made following a fair and comprehensive assessment of the patient’s situation.

Second, the patient must not exhibit suicidal ideation, as with major depressive disorders.

Third, the patient must experience intense and prolonged psychological suffering, as confirmed by severe symptoms and overall functional impairment, over a long period of time, leaving them with no hope that the burden of their situation will ease. This prevents them from being fulfilled and causes them to see their existence as devoid of meaning. This element must be assessed by the assessors.

Fourth, the patient must have been receiving care and appropriate follow-up over an extensive period of time, have tried multiple available therapies that are recognized to be effective, and have received ongoing and proven psychosocial support.

Fifth, requests must undergo a multidisciplinary assessment, including by the physician or specialized nurse practitioner in the field of mental health who has treated the individual as well as by a consulting psychiatrist in the specific case of the MAID request. Dr. Stefanie Green’s comments are also highly relevant to many of our concerns. Dr. Green is the founding president of the Canadian Association of MAiD Assessors and Providers. In the brief she submitted to the Special Joint Committee on Medical Assistance in Dying, she listed the criteria for which people are not eligible for MAID.

These criteria are as follows: A person in a suicidal or psychotic crisis is not eligible to receive MAID; a person newly taken into care and newly diagnosed is not eligible to receive MAID; a person whose request is based on structural vulnerabilities such as precarious housing or poverty — this has made the headlines, but always for the same three people — is not eligible to receive MAID; a person who refuses, without rationale, all treatments that could improve his or her condition is not eligible for MAID; a person for whom accessible and effective treatments exist is not eligible for MAID.

If the assessors cannot decide on all or some of the criteria already cited, the person is not eligible for MAID. These individuals will be directed to the resources appropriate to their situation.

I would point out that during the meetings of the Special Joint Committee on Medical Assistance in Dying, one psychiatrist was asked how many people, based on her professional experience, would be eligible for MAID. She said that after reviewing records from her many years of practice, she’d identified only two individuals who would be eligible to receive MAID. While a lot of people may request it, assessments are what ultimately determine eligibility for MAID.

Colleagues, extending eligibility for MAID to include people whose sole reported problem is a mental illness is not a free‑for‑all. Our system is governed by laws, protections and strict standards of practice. If you haven’t already, please review the joint committee’s main report, the two supplementary reports by MPs and the two dissenting reports written by the majority of senators who sat on the Special Joint Committee on Medical Assistance in Dying. Personally, I’m not prepared to support Bill C-62 in its current form.

Thank you for your attention.

Honourable colleagues, three years ago during the final debates on Bill C-7, I acknowledged that disability rights organizations would lose that round when Bill C-7 became law, but it would not be the last time that senators would be tasked with addressing the discriminatory impact of medical assistance in dying, or MAID, and here we are.

Every senator is paying close attention to our responsibility to carefully consider this bill, appreciating the complex and profound issues raised by Bill C-62. The expertise and resources available to us in our readings of this bill are also complex, diverse and often divergent.

I want to thank Senator Gold for his helpful review of the reasons to support Bill C-62 at this time, and I want to thank every senator who has spoken thoughtfully and sincerely to this debate.

Almost 50 years ago, I graduated from Osgoode Hall Law School, and in the early days of litigating with Canada’s new constitutional Charter rights, I was a lawyer with the ARCH Disability Law Centre, the first legal clinic in Canada to specialize in disability law and advocacy. I welcome this opportunity to add to this debate, and I want to offer analysis derived from experts on disability rights.

Last Friday, I sponsored a media conference of these experts where Krista Carr, Executive Vice-President of Inclusion Canada, noted:

Fundamentally, we know that providing MAID to persons with disabilities not at the end of their life, as opposed to suicide prevention and other social and economic supports, is unequivocally discriminatory. Disability organizations across this country have been clear about this and predicted that if we expanded MAID to people with a disability not at the end of life people would die who desperately wanted merely to be able to live a life of dignity with the support needed to do so, and right we were.

If you look at the data on MAID deaths in Canada, we have already outpaced countries who have had some form of legalized medical assistance in dying for years longer than we have. We are being seen as having the most permissive MAID regime in the world. The bodies are literally piling up, and we are now talking about expanding it further?

In The Hill Times some weeks ago, law professor Daphne Gilbert, a proponent of MAID expansion, called on the Senate to reject Bill C-62 in the name of defending human rights, comparing access to MAID to the fight to defend the reproductive health rights of women. I would like to explore this point further.

MAID advocates who argue from a rights perspective are correct that an understanding of human rights is key to this debate, but in effect, some of their arguments actually discount disability rights.

Also in The Hill Times law professors Isabel Grant and Trudo Lemmens questioned appropriation of feminist arguments on bodily autonomy and reproductive choice as a sleight of hand in attempting to persuade the Senate to overturn the decision of the Special Joint Committee on Medical Assistance in Dying where senators have been fully engaged members making substantive contributions.

The UN Convention on the Rights of Persons with Disabilities, which Canada ratified and is obligated under international law to uphold, defines a social model of disability, which requires states to recognize the disabling nature of attitudinal and environmental barriers that hinder a person’s full participation in society on an equal basis with others — in other words, substantive equality.

Colleagues, some of you may be aware of my decades of human rights work and my contributions to drafting equality provisions in the Canadian Charter of Rights and Freedoms entrenched in the Constitution of Canada. I will be sharing more resources from a range of experts in my speech. However, I wish to state that, based on the social model of disability rights and my own experience, I find no equivalence.

MAID, for someone with a disability who is not at the end of their life — for example, someone with a mental illness — is not a disability right, and it is not equivalent to the right to reproductive choice.

To quote Professors Grant and Lemmens:

. . . Abortion rights enable women to thrive in a society where they have historically faced social, political, and economic inequality, just as disability rights are crucial for people with disabilities to thrive in an ableist society that often degrades the value of their lives.

In light of the stark data we are now starting to collect on MAID and its impacts on socially marginalized people — particularly those living with disability — let us be reminded of the cautions raised by the three independent United Nations experts when Bill C-7 was before us: the Special Rapporteur on the rights of persons with disabilities; the Independent Expert on the enjoyment of all human rights by older persons; and the Special Rapporteur on extreme poverty and human rights. They all alerted that human rights violations were likely to occur under Bill C-7’s expanded Track 2 access.

We here are charged to uphold the rule of law in Canada, including the rights in our Charter and international human rights treaties ratified by Canada such as the international Convention on the Rights of Persons with Disabilities and the international covenants on social, economic, civil and political rights — all accepted by Canada as essential treaties in our adherence to human rights law.

In their joint advisory to Canada, the three UN experts conveyed that MAID legislation, “ . . . appears irremediably entangled in ableist assumptions about persons with disabilities.” They elaborated further:

 . . . the eligibility criteria set out . . . may be of a discriminatory nature, or have a discriminatory impact, as by singling out the suffering associated with disability as being of a different quality and kind than any other suffering, they potentially subject persons with disabilities to discrimination on account of such disability.

The alarms they raised then are sadly proving prescient. Last week, disability community advocates from across Canada came to Ottawa to provide testimony to the Canadian Human Rights Commission on key issues facing people with disabilities. Their list was long, but their top concern was the impact of MAID criteria for eligibility on persons with disabilities.

Colleagues, when we welcomed the UN Special Rapporteur on freedom of religion or belief to this chamber recently, you will recall how I emphasized that these human rights special rapporteurs are chosen for their internationally recognized expertise and that their independence is reinforced because they work pro bono. I hope you agree that it is significant that three of these experts took the extraordinary step of warning Canada about the likelihood of disability rights contraventions in our MAID laws, sending a joint advisory letter to Canada.

Today, the new UN Special Rapporteur on the rights of persons with disabilities conveyed her concern and intention to monitor what evolves in Canada.

Let us also be reminded that expertise comes in many forms, not just from one professional discipline. UN and Canadian disability rights experts continue to try to alert Canada that dangerous and discriminatory situations happen to people living with disabilities far from the notice of this chamber and far from our being able to do anything about their situations in real time. The joint advisory from the UN experts specifically warned that expanding MAID to those whose sole condition is a mental disorder will lead to even more people applying for and receiving MAID due to socio-economic deprivation — also known as being poor. They are justifiably concerned that MAID expansion is being viewed as an easy answer and that it is caused by the economic and social inequality that many people with disabilities are forced to live with.

In my remaining time, I wish to bring more expert voices from a number of disciplines and their arguments to your attention for your respectful consideration.

The experts at the ARCH Disability Law Centre have a long and distinguished track record of defending the rights of persons with disabilities. If there is a “cacophony” — as disparaged by Senator Kutcher — these expert voices are not in that category.

ARCH lawyers report staggering increases in the number of clients who have applied for or who are seeking to apply for MAID Track 2 not because of the disability but because of suffering related to barriers in society, including living in poverty and lack of accessible, safe housing.

ARCH lawyers have testified that they have clients who cannot get the services they need such as attendant services to assist with the basic activities of daily living. Instead of getting services to support them to live with dignity in the community, they are often given the impossible and false choice of living in the community in unsafe conditions or moving into a hospital or long-term care institution where they may get some services, but they are required to give up their independence, work and relationships.

These are not people who are dying. These are not people who want to die. They are people living with disability who need and are entitled to a level of support that provinces do not offer — a choice that is being made.

To quote ARCH Executive Director Roberto Lattanzio:

. . . people with disabilities are dying by MAiD not because they want to end their lives, but because they are suffering due to dehumanizing social and economic conditions. Expanding MAiD to people whose only condition is a “mental disorder” will exacerbate this. . . .

Senator Kutcher repeatedly referred to the cacophony of “ . . . erroneous, inflammatory . . . ” anti-MAID activists who have “ . . . drowned out . . . ” voices and “ . . . fed us fear and falsehoods.” Colleagues, that may be how the senator perceives those who have a different view from his, but the experts that I am bringing to your attention are not cacophony. They deserve respect and acknowledgment of their skills and their direct, current testimony about real people living with disability whom they know and who are in such deep crisis that they are choosing death because they cannot live in dignity. These experts are reporting on direct experiences in good faith and for good reason, and I ask you to consider the human rights analysis they offer, with respect.

More than 100 Canadian disability support organizations came together to oppose Track 2 and Bill C-7 because they all have clients who cannot get the mental health services they need to live their lives with agency and dignity.

Statistics Canada 2022 data indicates that wait-list times for community health counselling are increasing year over year.

In a national poll conducted by the Ontario Psychiatric Association with analysis based upon data collected from December 7, 2023, to January 23, 2024, 61% of psychiatrists stated that MAID for mental illness should not be allowed, and 81% said the medical system is not prepared for MAID for mental disorders.

The disability community has been articulate in asserting that MAID violates Canada’s international human rights obligations to people with disabilities under the UN Convention on the Rights of Persons with Disabilities in certain respects.

One of those rights is the right to life. Genuine choice is a central pillar of the right to life as it applies to assisted dying. Exercise of this right requires that assisted death is chosen without any outside coercion or pressure. Deprivation is outside pressure, and it is more than a moral question. When social, economic and ableist obstacles and pressures impede the provision of full rights to persons with disability, then their autonomy and ability to make free choices are compromised.

Social isolation, lack of supports, persistent poverty, lack of safe, accessible housing — all face social and economic pressure. They are often not in a position to exercise free and unconstrained choice. UN disability experts have been clear that economic and social rights are key to affording genuine autonomy instead of the myth that is currently in the law at the moment.

Your Honour, I would ask the chamber if I might be allowed a little more time.

I have heard a “no.” I’m sorry, Senator McPhedran.