Moved third reading of Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).

He said: Honourable senators, I rise today to speak at third reading of Bill C-39, which extends by one year the implementation day for medical assistance in dying — mental disorder as the sole underlying condition, or MAID MD-SUMC. Once again, I would like to acknowledge that our debates which address sensitive issues such as suicide can be distressing to some and that seeking help when you need it is a sign of strength.

During second reading, I spoke to the scope and purpose of the bill and the reasons why the extension is necessary. Today I will remind us of those reasons, and I will also spend time addressing some of the misinformation that has coloured public understanding of the complex issues surrounding end-of-life choice and has sadly crept into medical professional and parliamentary discourse on the topic of MAID MD-SUMC.

The one-year extension will allow for readiness within our health care systems through cooperation between federal, provincial and territorial governments, regulators and providers. In my opinion, readiness means that four conditions have been met: one, that the model practice standard is finalized, published and distributed to regulators in each province and territory; two, that the certified MAID training program has been completed and is available for access by MAID practitioners; three, that the updated reporting requirements have been fully implemented, and the government has begun to gather the data that will be critical for ongoing assessments of the MAID system in Canada; and four, that the government has had the time needed to review the report of the Special Joint Committee on Medical Assistance in Dying.

Colleagues, we are addressing one of the most important legislative challenges that Canadians have faced and, as Senator Martin said in her second-reading speech, a “complex and deeply personal” issue. We are dealing with an issue that will go down in our history as a touch point in the evolution of our understanding of the individual rights and autonomy of those who are living with a mental disorder. This is of the same depth, complexity and nature as two other health-related issues that we have previously grappled with: contraception and women’s reproductive rights. This evolution in our thinking reflects a movement towards a more compassionate society in which we respect and value each other regardless of who we are, who we love or how we choose to die.

This evolution also reflects how Canada is moving to health provision in which the traditional autocratic paternalism of the past is being replaced by patient-centred care. Now we expect that health care providers collaboratively work with patients to create the compassionate conditions in which competent individuals can make free and informed decisions about their own bodies in life, as well as when contemplating death.

The complex issues that we are dealing with in MAID MD‑SUMC require careful critical thought, respectful discourse, a deep understanding of the nuances involved and a willingness to put the interests of those who are intolerably suffering ahead of unbending ideology or political expediency. Addressing these complex issues also requires us to avoid creating or spreading misinformation and to call it out when we encounter it. We can respectfully disagree with each other. After all, that is an integral part of democratic discourse. That said, this is not the same as misinforming ourselves and each other.

Since the coming into force of Bill C-7, my office and I have been following the public discussions about MAID for mental disorder as a sole underlying condition in mainstream and social media. We have also carefully reviewed all the debates on Bill C-39 recently held in the other place. Personally, I have had the privilege of being part of the joint committee on MAID, as a number of other senators here have also had, and being privy to the many hours of witness testimony and the reading of many briefs.

As a result of this research and deep exposure to the complexities and nuances that surround MAID MD-SUMC, I have identified three areas of misinformation that have characterized public and parliamentary debate in the last year. I will share those with you, as engagement with this issue will not likely end with the passing of Bill C-39. As we all go forward, knowing what some of the common types of misinformation are can help us in our research, discussions, deliberations and in our conversations with each other, regardless of what viewpoints we may hold. They are the following: MAID is replacing access to mental health care; MAID MD-SUMC is a slippery slope; and MAID is another name for suicide. I will take each and examine their origins.

Before doing so, however, let us be clear about how misinformation arises. Some of it is deliberate, initiated by actors who do not like how our society is evolving and who respond to this by the creation and distribution of misinformation. Some of it may be inadvertent, where well-meaning people are swept up into an emotional state and accept what is being promoted without a deep understanding of an issue and careful consideration and critical analysis of what information they are sharing.

I discussed the false statements that have been made about MAID MD-SUMD replacing access to mental health care and that individuals in an acute crisis can access MAID in my second-reading speech. Let me be very clear. People who are suicidal or in an acute mental health crisis will not qualify for and will not receive MAID.

Individuals who request and receive approval for MAID MD‑SUMC will have experienced a substantial amount of different kinds of mental health care for a prolonged period of time. They can also withdraw their consent at any time during the minimum 90-day period. Their intolerable suffering is not because they could not access mental health care; it is because none of the many interventions that have been tried over long periods of time have worked sufficiently well to alleviate their intolerable suffering. Sadly, for mental illness, as for other types of illnesses, not every person who is severely suffering finds the relief that they seek with any of the treatments that we have. Thankfully, this is a very small number of people, but it is still a group of individuals who suffer intolerably.

That is why for those who suffer intolerably, decisions as to MAID MD-SUMC eligibility must be made on a case-by-case basis. As I discussed on Tuesday, there is no “cookbook recipe” for determining if a person’s suffering is irremediable and intolerable. There are substantive clinical considerations for sure, and these have been identified in the expert panel report and in the model practice standard. Psychiatrists, using a two-stage Delphic process have also reached a consensus on what this means clinically. The regulatory bodies will further address these in their MAID practice standards, just as they do for all medical care.

It is essential for us to understand that clinical interventions for complex medical conditions are always done case by case, using evidence-based medicine and patient-centred care. Decisions on how and when to intervene eventually come down to a jointly made agreement between the one who suffers and those doing what they can to help alleviate that suffering. That is how modern health care is meant to work. The phrase “to cure sometimes, to relieve often, and to comfort always” aptly captures this patient and healer collaboration.

Another common misinformation argument made about MAID MD-SUMC is that it is a slippery slope — a classic example of a logical fallacy. Of the three different types of slippery slope fallacies, the causal slope variety is the one most frequently found in MAID MD-SUMC discourse. This is defined in the following way:

Causal slopes . . . revolve around the idea that a relatively minor initial action will lead to a relatively major final event.

While the outcome of this so-called slippery slope is not clearly identified, the presumed conclusion is that if MAID is offered for MD-SUMC, then in a short period of time, very large numbers of individuals who suffer with mental illnesses will receive MAID and/or that other horrific and untoward events will occur. A key component of this type of fallacious misinformation argument is that no evidence is provided to prove that what is predicted to happen will actually happen. Furthermore, it often confuses the expected and usual uptake of a new intervention as proof of the existence of a slippery slope and substitutes emotional angst and fear for rational consideration.

Here is what an expert review of the slippery slope fallacy had to say:

In general, slippery slopes are primarily associated with negative events, and as such, slippery slope arguments are frequently used as a fear-mongering technique. As part of this, slippery slope arguments often include a parade of horribles, which is a rhetorical device that involves mentioning a number of highly negative outcomes that will occur as a result of the initial event in question.

Unfortunately, the slippery slope fallacy has been perpetuated in media, in speeches in Parliament and during testimony provided to the joint committee on MAID.

The slippery slope fallacy also “. . . ignores or understates the uncertainty involved with getting from the start-point of the slope to its end-point.”

Therefore, the person making the argument has no idea what will actually happen. But they are certain that what they fear will happen will certainly happen and on this basis they promote this argument.

The misinformation distributed using a slippery slope fallacy can be substantial and have harmful impacts on the health and well-being of individuals and populations. It needs to be countered by pointing out the logical fallacy that this argument is based on and by providing data that addresses the fear that the argument is meant to encourage.

Let’s unpack the slippery slope fallacy as it pertains to MAID MD-SUMC in Canada. In the case of MAID MD-SUMC in Canada, we can look to evidence from other jurisdictions to determine the truth of such arguments. We can study jurisdictions that have introduced MAID MD-SUMC to determine if there is an ever-increasing and very large proportion of the population that is receiving MAID for a sole mental condition.

There is data to examine from the Netherlands and Belgium. In those jurisdictions, MAID MD-SUMC was introduced over a decade ago. We can examine the percentage of people accessing MAID for mental and behavioural disorders as a proportion of those accessing MAID once the pattern of use has been established.

Here is what the data shows us. In Belgium, in the last five years — for which the Library of Parliament was able to provide data to me — the proportion of people who accessed MAID for mental disorder as the sole underlying medical condition was as follows: 2017, 1.7%; 2018, 1.4%; 2019, 0.8%; 2020, 0.9%; 2021, 0.9%.

Let’s put these numbers in a different perspective. In 2021, the population of Belgium was 11.59 million. The total number of persons receiving MAID MD-SUMC was 24 — that is 0.00020% of the population. Clearly, there is no slippery slope in Belgium.

In the Netherlands, the numbers are as follows: 2017, 1.2%; 2018, 1.0%; 2019, 1.0%; 2020, 1.2%; 2021, 1.5%. Again, I’ll put these numbers in perspective. In 2021, the population of the Netherlands was 17.53 million. The total number of persons receiving MAID MD-SUMC was 115, that is, 0.00065% of the population — no slippery slope in the Netherlands either.

This data lines up with the recent study by Jordan Potter, published in Medicine, Health Care and Philosophy in 2018, titled, “The psychological slippery slope from physician-assisted death to active euthanasia: a paragon of fallacious reasoning.” Professor Potter concludes:

. . . (1) employing the psychological slippery slope argument against physician-assisted death is logically fallacious, (2) this kind of slippery slope is unfounded in practice, and thus (3) the psychological slippery slope argument is insufficient on its own to justify continued legal prohibition of physician-assisted death.

Colleagues, as practitioners of sober second thought, it behooves us to call out this misinformation based on the fallacious slippery slope argument when we come across it. Indeed, we could identify the phrase “slippery slope” as a yellow light warning us that what follows could be a fallacious argument.

A third area of mushrooming misinformation directed toward MAID MD-SUMC relates to the issue of suicide. Here the logical fallacy called the “jingle fallacy” — yes, there is a logical fallacy called the jingle fallacy — has been extensively used to muddy the reality and to call into question the primary purpose of MAID itself: an end-of-life choice made by a competent person who is suffering intolerably and who meets all requirements established by law.

A jingle fallacy is the erroneous assumption that two things are the same because they bear the same name — Logic 101, I remember. With MAID MD-SUMC, commentators using this logical fallacy state that MAID is suicide either because this medical practice had previously been called “physician-assisted suicide” or because, for their own reasons, they are using emotional rhetoric to activate the fear factor in others.

A very recent example of this is found in a media story on MAID MD-SUMC in which the following quote appears:

. . . when you introduce legislation that allows someone to prematurely end their life with the assistance of a medical practitioner, that is then doctor assisted suicide. By definition, that is suicide.

In this case, nomenclatural confusion may have contributed to the ease with which this type of misinformation has spread. Indeed, it was the 2016 joint House and Senate report that reviewed many of the terms used to describe this end-of-life intervention and settled on the term “medical assistance in dying,” possibly to avoid this confusion.

As a reminder to us all, the 2016 joint committee report was titled Medical Assistance in Dying: A Patient-Centred Approach. Those who have not yet had the opportunity to read it may want to do so. Those who have read it will recall that the third recommendation was:

That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.

This committee also grappled with and accepted a definition of “grievous and irremediable,” which is similar to what the expert panel recommended in 2022.

If we listen closely to the suicide misinformation narrative, we will find that at no time is there any attempt made to critically parse how MAID and suicide are the same. The statement is simply made that they are, and that is that. So instead of blindly accepting this statement as truth, let us compare death by suicide and death by MAID. If MAID is indeed the same as suicide, these two types of events should have many similarities.

Suicide is often impulsive. MAID MD-SUMC requires a minimum of 90 days’ waiting and is not impulsive. Suicide is often violent, resulting in traumatic experiences for family members or first responders who come upon the body. MAID MD-SUMC does not result in that type of traumatic experience.

Suicide is a secretive and lonely act, often committed by an individual in desperate circumstances. Family and friends are avoided, not included. MAID is not a secretive and lonely act and usually occurs in the presence of family and/or friends.

Suicide often results in unresolved grief and lasting mental anguish for those left behind. Rates of depression, psychiatric admission, suicide attempts and death by suicide are increased in family members who are in bereavement from a suicide. For families involved in MAID, this experience results in grief and feelings of loss that are similar to those of families involved in palliative care experience and does not mirror the negative outcomes found in families who have experienced the loss of a family member to suicide.

Colleagues, you can decide for yourselves how these two items are similar or different. In my estimation, they do not share the same characteristics and are clearly not the same.

Perhaps, however, there are other ways that suicide and MAID could be the same. Let’s explore this possibility. If suicide and MAID were the same phenomenon, they should be similar in their population demographics. Further, if suicide and MAID affect the same population, the introduction of MAID should decrease rates of suicide. If, on the other hand, as some have argued, the availability of MAID will increase suicide rates in the population, the introduction of MAID should be followed by increased rates of suicide. Let’s check these possibilities out.

First, regarding the assertion that MAID and suicide affect the same populations, this is false. The age distribution of MAID deaths and suicide deaths is different. The gender distribution of MAID deaths and suicide deaths is different.

Second, the assertion that MAID will increase or decrease suicide rates in Canada is also false. The suicide rates in Canada did not increase or decrease significantly since the introduction of MAID. This difference in MAID as compared to suicide demographics in Canada and the lack of MAID impact on suicide rates in Canada strongly suggests that the population that chooses MAID and the population that dies by suicide are not the same population. This data simply does not support the contention that MAID and suicide are the same phenomenon.

What about other countries in which MAID is available? Are they the same as Canada or different? Here the data supports the same conclusion: They are not the same. I will quote from a review of this data in Belgium and the Netherlands by Dr. Tyler Black, who was a witness at the special joint MAID committee:

The following is a comparison between countries that enacted death with dignity legislation (Belgium and the Netherlands) and neighbouring countries that did not. Comparisons between countries have several challenges, but there is no empirical support for the notion that suicide rates increased or differed in MAID-legislated countries versus those that didn’t.

This had a control group in it. Again, it’s not the same there either.

Another component of this MAID-is-suicide misinformation is falsely arguing that suicide is unique to MAID MD-SUMC, a comment that is easily debunked by simply turning to the facts. For example, in the same recently published media article, a self‑identified opponent of MAID MD-SUMC stated:

The traditional form of MAID with a reasonable foreseeability of death allowed MAID to actually operate on a plane that didn’t intersect with suicide.

So let’s look at this assertion. I addressed this during my second reading speech on Bill C-7 and will quote myself:

. . . the presence of a severe and chronic illness is, by itself, an elevated risk factor for suicide. This elevated risk is not only found in persons with a sole mental disorder.

For example, the Canadian Community Health Survey found that, in young adults, attempted suicide was four times higher in those with chronic illnesses such as asthma and diabetes. Suicide rates in persons with cancer are twice as high as in the general population and eight to ten times higher in persons with Huntington’s.

In a study of suicide and chronic pain, Fishbain et al. found that the rate of suicide in chronic pain patients was two to three times greater than in the general population. Tang and Crane, in a global review of suicide and chronic pain, found that the risk of death by suicide is at least double in those with chronic pain.

A similar pattern of significantly increased rates of suicide in chronic illnesses occurs with other chronic illnesses, including cancer. A recent global meta-analysis published in Nature Medicine in 2022 by Heinrich and colleagues reported that the suicide rate was 85% higher for people with cancer than in the general population.

Colleagues, according to Health Canada data for 2021, over 65% of all people who chose a MAID death had cancer as the underlying condition. Remember, suicide deaths in cancer patients are 85% greater than in the general population.

It is false to say that chronic diseases that are not mental illnesses do not have similar concerns about suicide. That is just completely wrong. So why is this misinformation being spread? Whatever the reason may be, our role in providing sober second thought behooves us to follow the data, not pontifications or personal opinions.

As I wrap up this speech, I will turn to another issue that, in my opinion, has been poorly addressed in all these discussions: that of the need to improve rapid access to effective mental health care for all who require it. This is something I fought for my whole professional life and continue to do so.

When I graduated medical school in the 1970s, the number one mental health care need was rapid access to effective care for all those who required it. When I completed my residency in psychiatry in the 1980s, the number one mental health care need was rapid access to effective care for all those who required it. When I entered the Senate, the number one mental health care need was rapid access to effective care for all those who required it. According to the World Health Organization, the expenditure for mental health care should be about 10% of the total health care budget. The Canadian Mental Health Association calls for that number to be about 12%.

This is not solely a federal government issue. Provinces and territories set budget allocations for health and mental health. In my research, the proportion of health care budgets allocated to mental health care fall between 5% and 7% in most provinces and territories — well below required amounts.

We keep hearing that mental health care is on a priority list. Well, colleagues, let’s take mental health care off the priority list and put it on the equitable funding list.

We currently have a national push and environment to move beyond talk to implementation. There is now a federal Minister of Mental Health and Addictions. There is discussion of a targeted mental health transfer fund. Perhaps this will result in the federal government providing more support for improving rapid access to high-quality mental health care for all who need it.

Perhaps this will be the impetus that provinces and territories require to step up their investments in mental health care and also to invest in what works and not what ticks a box.

Honourable senators, we need to keep up the pressure on all levels of government to equitably invest in improving rapid access to effective mental health care for all Canadians. But this pressure is not because of MAID MD-SUMC. It is because we need this to happen, MAID or no MAID.

As we prepare to go to a vote on Bill C-39, I thank you for allowing me to share concerns I have about the misinformation surrounding MAID MD-SUMC and for your continued support for doing better for those Canadians living with mental illness. They deserve compassionate, equitable treatment throughout their life journey, and that includes the end of life.

Colleagues, thank you for your attention and your careful consideration to the complexities and nuances of the MAID MD‑SUMC debate.

For the many reasons that we have discussed this week, in my opinion, it is the right thing to do to delay implementation for MAID for mental disorder as a sole underlying condition by one year.

Wela’lioq, thank you.

Honourable senators, to say in most cases that you are pleased to speak on a piece of legislation — that’s usually how you start your comments, but, believe me, I’m not necessarily pleased to be speaking on Bill C-39.

While I have great respect for Senator Kutcher and, certainly, his opinion, I respectfully disagree with much of what he has said. When we started the debate on medical assistance in dying back in 2016, every weekend I travelled home to Newfoundland and Labrador and I went to see my dad who spent the last two years in bed before he passed away in May of that year. I struggled with MAID at that time for obvious reasons, and I still struggle with parts of it today.

What concerned me in 2016 still concerns me in 2023. One of those concerns was what we call the opening of the barn door. I don’t necessarily agree with what Senator Kutcher said in relation to some of the slippery slope concerns, but we could also lean in that direction.

My concern back then was, and is today, that when we start this process, where do we draw the line? When does there come a time when we look and say that we need to put the brakes on? We had a parliamentary committee, and I congratulate them on their work, and I know everybody does this for the right reason when talking about extending MAID to children.

My concern is the snowball effect. We all know the story of the snowball at the top of the hill. We let it roll down. As it rolls down, it picks up speed and it gets larger and larger. By the time it reaches the bottom of the hill, in some cases, it is too large to handle. My concern also is the vulnerable people who are out there who are suffering from mental health illnesses. Certainly, I agree with Senator Kutcher in talking about more resources, such as finance resources and human resources. They are lacking right across this country, and they are lacking in my home province of Newfoundland and Labrador. We need to have more financial resources and human resources put in.

It is the evolution of mental health illness over time. I look back at our parents’ generation, and they had no — or very little — understanding of mental health; I remember this while growing up as a young boy in my hometown of St. Bride’s. Now I know — I didn’t know then — that there were people in that community who were suffering — and still are — from mental health issues. But our comment was always “There’s something wrong with him, or something wrong with her.” It wasn’t mean‑spirited in any way, shape or form. It was just the way it was. It was the lack of understanding, lack of education and lack of knowledge. Maybe, more importantly, it was the lack of having a conversation about it.

Today, most of us — and I do not pretend in any way, shape or form to have an understanding of mental health that Senator Kutcher may have in his profession — have a limited understanding of mental health issues. We all read, we all listen and we all have a great opportunity here in this chamber to hear others talk about it — to hear from people with a background in dealing with mental health. We can understand more, and educate ourselves more, so that we can pass that on to others. That is a privilege that we have here in this chamber that many across this country don’t have.

As I said, in today’s generation — because we’re talking about it more, and because it is not a taboo subject anymore — we are gaining a limited understanding of mental health issues. The present generation — our children — are developing a much better understanding. I truly believe that, and I truly hope that, because they are gaining a much better understanding, they will, in turn, have much better ways of dealing with mental health issues in the future.

Mental health is unpredictable. It is not like physical health when we have a broken leg or broken arm. There are very troubling diseases that people live with for their lifetime.

Respecting, and showing respect, love and understanding to people suffering with mental health is something that we all need to work toward.

The purpose of Bill C-39, as put forward by the government, is to extend it for another year. If I believed that we are extending it for another year to ascertain across the country if we are doing the right thing regarding mental health issues — or we are trying to figure out if we are doing the wrong thing in bringing this forward — I may find some way of being able to support it. But I truly believe, in my humble opinion, that the reason we have Bill C-39 is because there has been such a backlash across the country from people who are very concerned about where MAID is going, and very concerned about the snowball effect. I think that is why we are sitting here today dealing with a piece of legislation that is asking for another year.

The government is not asking for another year to determine the path they want to travel. They are asking for another year so they can, hopefully, bring the numbers up on the polling that’s been done in order to ensure their side of the story is being accepted.

Again, I have some great concerns with how that’s been done.

I’m not a medical doctor; I’m not a psychiatrist. I have not received training in health care; I have not received training in the legal side of things. I am just an individual who is aware of several people who are living with, and have lived with, for their lifetime, poor mental health issues — people, in my view, who require help and assistance from all levels of government and all levels of the health care profession. They don’t need help in dying.

I understand the sensitivity of this issue, and I respect everyone else’s opinion. Some people have different backgrounds than I have. Some people have different ways of dealing with things in how they accept — or don’t accept — mental health issues. I am not going to judge anybody else on their opinion of that.

I respectfully disagree with assisted dying, I respectfully disagree with the extension that we’re talking about here today and I respectfully disagree with extending assisted dying to children.

I think we should be talking about counselling, and bringing more counsellors in. I think we should be talking about therapy — extra therapy. I think we should be talking about ways to try to deal with this very serious issue that we face in this country today.

I am not going to belabour the point. I just wanted the opportunity today to say a few words in order to put my opinions on the record — for what they may be worth.

It’s very ironic because I was travelling to Newfoundland last week, and I stopped at a local business. I’m always looking for books — I love to read — especially books related to Newfoundland and Labrador in any way, shape or form — particularly, the history of the province and the people that made the place that I’m so proud to call home. I stopped into a store, and I picked up a book — and the book is called From The Shadows: Surviving the Depths of Mental Illness.

I also believe in faith. There is a reason for everything — again, in my humble opinion.

From The Shadows is written by E. Pauline Spurrell who suffered mental illness issues all her life. She lives in the small community of Hillview in Newfoundland with her husband Don; they have for almost 40 years. They have one son, Andrew. It’s a compelling story — I will not get into all the details today — but for anyone who wants to become educated about the concerns of how people deal with mental health, or for anyone who wants to learn from someone who has lived it within very tragic circumstances, I suggest that you buy a copy of her book.

After a joyful early childhood, E. Pauline Spurrell suffered trauma that led to unhinged teenage years and a turbulent adult life. She was diagnosed — and misdiagnosed — with numerous mental illnesses. She endured a seemingly endless cycle of prescription treatment and failure until, one day, enough was enough. Following the years lost in the depths of despair, she fostered ideologies of self-discovery. Spurrell created tools to understand her disorders and the resulting impacts on her life. She reclaimed priority, found the inner child she had left behind and emerged from the shadows as a portrait puzzle of perfect imperfections.

I had the opportunity yesterday — after reading her book last week — to speak to Spurrell for about an hour on the phone in order to gain some insight. Again, I don’t have the background; I just have the privilege to be here in the Senate of Canada to participate in the debate on important legislation like the one we have before us. I spoke to Spurrell, and she is now living a full and happy life. She is still suffering from bouts of mental illness, mind you, but she found a way out. She was medicated to the hilt with medication that I wouldn’t even bother to try to pronounce here today.

She found a way out. There were times when she was in desperate situations; you can read about it in her book. The trauma is unbelievable. But she found a way out.

In reading the book, I found a reason not to be supportive of assisted dying for people who are suffering from mental health illness. I found a reason to stand here today and say a few words and to tell you the story of people like Pauline who found a different way, who found an avenue from a life of despair, a life of trauma, a life of tragedy. And she found a way to be able to live a full and happy life with her husband, Don, her son Andrew and her family and friends.

These are not easy discussions, honourable senators. In all my time here, we have had many pieces of legislation dealing with financial issues, and from time to time we can agree and disagree on how we deal with the fiscal policies of this country.

We have, from time to time, dealt with legislation that is very personal and brings out different parts of us that we don’t even know we have, sometimes. This is one of those pieces of legislation.

I believe the snowball effect of medical assistance in dying is not going to stop with Bill C-39. I strongly believe that, for those who have the opportunity to spend more time here, we will be dealing with another part of that snowball in the not-too-distant future.

As I said, I’m no expert. I’m no expert on dealing with some of these serious issues, but I am a person who is living a life, and I respect the opportunity for others to live theirs.

Thank you.

Honourable senators, I rise today in a very unusual position. It is not every day that I find myself compelled to speak about ill‑conceived and objectively shortsighted legislation while committing not to stand in the way of its passage. But in this case, the government has tied our hands, as the alternative to the passage of Bill C-39 is much more dire.

As Senator Manning said in his eloquent, emotional speech, we disagree with each other, but I respect everyone’s opinions in this chamber even though they may be different than mine. I respect my colleague Senator Kutcher and his opinion, but I do want to make a few comments about what I find very troubling about his comments a few minutes ago.

Suicide is the act of intentionally causing one’s own death. We can call suicide by something else, but it is suicide. If somebody intentionally chooses to take his or her own life, even if they solicit the help of somebody, let’s at least call it what it is.

When the good senator says that somebody who is suicidal will not be given access to suicide — when we are, in fact, passing a bill that does exactly that — I find that mind-boggling because calling it MAID is still not taking away from the fact that one is intentionally causing one’s own death and, in this case, soliciting the help of someone.

I want to make it clear at the outset, for anyone listening, that allowing this bill to pass should not in any way be interpreted as an endorsement for the legalization of assisted suicide for mental illness. Quite the contrary. If this bill does not pass on March 17 — that’s next week, colleagues — Canadians suffering from mental illness as the sole underlying condition will be eligible to end their lives with the assistance of a medical professional.

While I believe that the Liberal government should be abandoning this dangerous expansion altogether, those of us who remain steadfast in our opposition will take advantage of this delay and continue to fight for the many vulnerable Canadians struggling with mental illness, trying to keep them alive.

Two years ago, at third reading of Bill C-7, an amendment was moved in this chamber to remove the exclusion of mental illness for eligibility, with a sunset clause of 18 months. The government, shockingly, accepted this amendment but proposed a new arbitrary expiry date of 24 months, therefore bringing us to March 17, 2023.

The government’s endorsement of this amendment came after Minister Lametti stated at our Legal and Constitutional Affairs Committee and at the House of Commons Justice Committee that there is no consensus in the mental health and psychiatric community that could justify moving forward with extending access to those suffering from mental illness at this time. He also correctly stated that it is not a requirement of the Supreme Court decision.

This third reading amendment was accepted without the opportunity for parliamentarians to vet the proposal with expert witnesses and, certainly, without any medical consensus.

Then, after the fact, the government struck up an expert panel not to determine whether implementing assisted suicide for mental illness could be done safely, but rather to establish recommendations on protocols.

As a former president of the Canadian Psychiatric Association, Dr. Sonu Gaind, stated when he testified at the joint parliamentary committee, this is “. . . not how science works.” He pointed out the following:

No drug company is told their sleeping pill will be approved in two years without evidence of effectiveness or safety while being asked to develop instructions in the meantime on how to use the pill. The sunset clause and the federal panel’s mandate are based on less evidence than is required for introducing any sleeping pill.

The sunset clause was sold as a way to allow time to develop standards and safeguards. But this notion has been discredited by many in the psychiatry community, as it ignores the only true safeguard we have in avoiding premature death: irremediability. The government had no interest in studying whether to implement this extremely controversial, life-and-death policy, only in developing a how-to guide.

Late last year, after a number of heartbreaking stories made headlines demonstrating the dangers of our newly expanded regime, the government announced they would be proposing some changes to the law in the new year.

Then, at the eleventh hour, weeks before the expiry of the sunset clause, the government tabled Bill C-39, which proposes a one-year delay.

I cannot help but wonder why, after admitting that a two-year delay was insufficient, they would take the risk of another arbitrary date in the hopes that evidence would suddenly present itself.

Why would advocates of assisted death for mental illness not just remove this expansion entirely and propose this policy later if and when there is evidence to justify doing so? How is the government so certain that there will be sudden clarity on this topic a year from now when the psychiatry community is not convinced we should be moving forward at all?

Colleagues, I will not rehash all of the arguments against assisted suicide for mental illness today, as I spoke at length to this issue in 2021 when the policy was first proposed. However, there is a great deal of new, notable testimony from the special joint parliamentary committee study which raised alarms. I would encourage all colleagues in this chamber to review the work of the committee and note the concerns raised by experts in the field.

For example, the committee heard expert testimony stating that vulnerable and marginalized Canadians are at greater risk of premature death; that psychiatric patients have indicated their intention to stop potentially effective treatments in anticipation of MAID; that sufficient data does not yet exist; and that it currently remains impossible to distinguish between suicidality and assisted suicide requests.

Today, however, I want to highlight the testimony that is fundamental to the discussion at this time, focusing on one key factor: Canada’s entire assisted dying regime, as stipulated by the Supreme Court of Canada, is founded upon the notion that only those suffering from conditions that are grievous and irremediable should be eligible.

Here is what we know from experts about irremediability of mental illness. The Centre for Addiction and Mental Health has concluded:

There is simply not enough evidence available in the mental health field at this time for clinicians to ascertain whether a particular individual has an irremediable mental illness.

Dr. John Maher, a clinical psychiatrist and medical ethicist, told the joint parliamentary committee:

Psychiatrists don’t know and can’t know who will get better and live decades of good life. Brain diseases are not liver diseases. If guesswork is good enough for you, it is not good enough for psychiatrists who understand the science and respect our duty to abide by a professional standard of care. You have been systematically misled by discriminatory ideology over clinical reality. Passing a law telling psychiatrists to make impossible predictions doesn’t magically make it possible.

Psychiatrist Dr. Sonu Gaind told the committee:

Those who advocate expanding access to MAID propose mitigating this reality with “safeguards.” This ignores the fact that irremediability is itself the primary safeguard built into the MAID framework, and bypassing it renders all other supposed “safeguards” meaningless.

Dr. Brian Mishara, a clinical psychiatrist and professor at the Université du Québec à Montréal, said in his testimony:

I’m a scientist. The latest Cochrane Review of research on the ability to find some indicator of the future course of a mental illness, either treated or untreated, concluded that we have no specific scientific ways of doing this.

Dr. Mark Sinyor, a psychiatrist and suicide prevention expert, stated:

In short, we are essentially missing all of the necessary scientific evidence to evaluate the safety of physician-assisted death for mental illness. If I had more time, I could list many examples, but let me focus on the fact that there is absolutely no research on the reliability of physician predictions of the irremediability of illness or suffering in psychiatric conditions. To my knowledge, there is not a single study.

Even the Expert Panel on MAID and Mental Illness stated directly in their report:

There is limited knowledge about the long-term prognosis for many conditions, and it is difficult, if not impossible, for clinicians to make accurate predictions about the future for an individual patient.

This is the government’s own expert panel, colleagues, and they have stated outright that it is difficult, if not impossible, to predict irremediability.

While over 85% of Ontario psychiatrists who responded in a recent survey supported assisted suicide in general, less than 30% agree with expanding the law to sole mental illness.

The special commission on MAID established by the Quebec National Assembly, after several months of study, has now recommended not expanding access to assisted dying for people whose only medical issue is a mental disorder.

In October 2020, the Canadian Psychiatric Association surveyed its members, and less than half supported assisted suicide for mental illness.

Where is the general scientific consensus we have been told about?

Colleagues, we do not need to be scientists or psychiatrists to understand the gravity of this policy. As has been alluded to, a recent Angus Reid poll — which studied the attitudes of Canadians when it comes to assisted suicide — found that while Canadians are “generally supportive” of MAID overall, only 3 in 10, or 31%, say they support the concept of assisted suicide for irremediable mental illness.

Each of us knows someone who is afflicted with mental health issues. Most of us are keenly aware of the abysmal state of mental health care in our country. The idea that we would be moving toward a policy that offers them death before they have had an opportunity for acceptable treatment is heartbreaking. It’s a terrible indication of where we are as a society and the value we place on life.

Dr. Mark Sinyor told the joint committee:

. . . if this goes forward, MAID assessors will have no idea how often they are wrong when they make a determination of eligibility in the context of physician-assisted death for sole mental illness. They could be making an error 2% of the time or 95% of the time. That information should be at the forefront of this discussion, yet it is absent altogether.

How many errors are too many, colleagues?

Minister Lametti stated yesterday that if there is any question as to the irremediability of the mental illness, then that person will not receive MAID, full stop.

Senator Kutcher alluded to that in his speech.

Yet, more than half of the psychiatry community maintains it is never possible to ascertain irremediability with mental illness. This is not nearly as cut and dried as the minister is implying, and he knows it.

Senator Kutcher has publicly stated that psychiatrists who object to assisted suicide for mental illness are being paternalistic. At least one of the witnesses at committee found this comment jarring and insulting. Colleagues, imagine telling psychiatrists and other clinicians who have not exhausted all treatment options — who have seen improvements over the long term, and who remain hopeful for their patients — that they are being paternalistic for not wanting to throw in the towel.

Psychiatrist Dr. John Maher objected to this notion, stating at the joint committee:

You said that all psychiatrists in Canada who object to MAID for mental illness are selfish and paternalistic. I’m not sure what purpose that comment served, but I defy literally any psychiatrist to say that this particular patient has an irremediable illness, because you can’t. I have patients who get better after five years, after 10 years and after 15 years. You cannot do it. It’s guesswork. If you’re okay with guesswork, if you’re okay with playing the odds, or if your position is let’s respect autonomy at all costs — if someone wants to die, they can die — call it what it is. It’s facilitated suicide.

Honourable senators, this expansion bypasses the primary safeguards we have against premature death. Yet, somehow, we are supposed to find comfort in a one-year delay. Facilitating the death of mentally ill patients will be as dangerous in 2024 as it would have been next week. There is nothing magic about the date of March 17, 2024, just as there was no significance to the original date. However, allowing Bill C-39 to pass is effectively a vote against the immediate legalization of assisted suicide for mental disorders. We will be taking this opportunity to get it right.

My colleague in the House of Commons the Honourable Ed Fast, Member of Parliament for Abbotsford, has already tabled Bill C-314 which will make clear in the Criminal Code that a mental disorder is not a grievous and irremediable medical condition for which a person could receive medical assistance in dying.

In presenting this bill, the honourable member said that the government is more concerned with “suicide assistance than suicide prevention” and that the priority should be given to providing the social and mental health supports that vulnerable Canadians need.

I want to commend my colleague for his swift and thoughtful action.

Colleagues, we will have an opportunity to get this right when that bill comes before us, as I am hopeful that it will. I personally look forward to supporting that bill every step of the way, and I hope you will join us.

I have always said that when it comes to assisted dying, it is a very personal, emotional issue on which reasonable people can disagree.

I do want to take a moment, however, to reflect on the debates we had when assisted dying was first legalized with Bill C-14 and, subsequently, when it was expanded through Bill C-7. Those of us who pointed to other jurisdictions and raised the slippery slope argument were told our concerns were unfounded. We heard it again this afternoon in this chamber. We heard these were logical fallacies and that Canada was taking a careful, cautious approach. We were assured that assisted suicide would be offered in the narrowest and most grievous of circumstances.

Colleagues, look where we are today. While I did believe we were on a dangerous trajectory, I could have never imagined that in just a few short years we would be offering assisted suicide to those living with a disability before we have made even marginal improvements in their quality of living. I could have never imagined that we would be offering assisted suicide to veterans, to those suffering from potentially treatable illnesses.

And now, colleagues, we are seriously talking about offering assisted suicide to children — just a few years after our slippery slope concerns were dismissed. Let us be cognizant of the speed at which we have moved the next time these issues are raised. Let us strongly consider heeding the warnings of international experts who have seen this play out in their jurisdictions.

Every policy decision we make is important, but in this case, the risk we are taking in getting it wrong has tragic life-and-death consequences.

To those listening who are struggling with mental illness or who love someone with mental illness and to those who treat and support them, please know this fight is not over. The work has only begun.

As I said, Bill C-314 has been tabled and will put an end to this reckless expansion. I look forward to continuing the fight in this chamber and I would encourage my colleagues to give the bill due consideration when it comes our way. Thank you.

Honourable senators, in the spirit of speakers before me who are not experts in MAID but who feel passionate about this issue, let me also offer some reflections on the bill before us.

Senator Plett has given us a good summary of how we got here in his account of Bill C-7 two years ago, underscoring the fact that the government itself did not want medical assistance in dying when mental illness is the sole underlying medical condition to be part of our MAID regime.

It was this chamber that put forward the proposed removal of the exclusion of mental illness as a sole underlying condition, and that amendment was ultimately adopted.

In the debate around the amendment to remove the exclusion, there were two arguments for removal. The first was that the exclusion of mental illness was unconstitutional because it was discriminatory. The second argument was that the medical profession already had the tools and capacity to do capacity assessment of patients with mental illness as the sole underlying condition.

Both of these arguments would have been sufficient for us to reject the exclusion. Indeed, the first argument of unconstitutionality would have been a slam dunk, but we chose to go a different route. We chose instead to delay the implementation of MAID MD-SUMC in the belief that the medical profession did not yet have all the tools and procedures for proper capacity assessment in the case of MAID MD-SUMC.

The agreed delay period in the end was 24 months, and that proposal was described euphemistically by many as a “sunset clause.” I thought at the time that the image of a sunset was not helpful for a variety of reasons, but in particular because sunsets are inevitable and essentially unchangeable, whereas the nature of the task that we gave to the medical profession for this 24‑month period did not lend itself to a fixed time frame.

I preferred the image of a runway, where the purpose of delay was to prepare an aircraft for takeoff. In this imagery, we have to ask not just whether the plane is ready for flight but also if the runway is long enough.

As I put it in my February 9, 2021, speech:

. . . 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?

Colleagues, I would ask the same question today, on the eve of our vote on this bill.

The difference this time around, I believe, is that the expectation around the one-year extension is framed more narrowly as a technical question of putting in place protocols and training materials and the two other criteria that Senator Kutcher referred to, and that those things can be done within the 12‑month period.

To that extent, I’m reasonably certain that the MAID MD-SUMC aircraft will take off on March 17, 2024. The runway will be long enough for “Flight C-39,” and it will take off, but I’m not sure that it will have as many passengers on board as it should.

The reason, colleagues, is that there continues to be profound disagreement among doctors on the question of irremediability. Distinguished experts have lined up on both sides of this debate. If you were hoping, as I was, for the original 24-month delay to provide scientific clarity on irremediability, you will be disappointed. If anything, the divide between the two views is as wide as ever, inflamed in part by media reporting about MAID cases that seem to be egregious violations of the safeguards put in place.

That’s why, colleagues, I believe the debate on MAID MD‑SUMC this time around is focusing much more on the rights and autonomy of Canadians with mental illness as a sole underlying medical condition rather than on medical evidence of irremediability.

In his testimony to honourable senators just yesterday, Minister Lametti used the word “autonomy” on multiple occasions as a core reason for allowing MAID to be accessible in the case of mental illness as a sole underlying medical condition.

Now, it should not surprise us that the Minister of Justice, who is a distinguished legal scholar, chose to focus on constitutional rights. And there are indeed arguments in favour of MAID MD‑SUMC based on constitutional protections for such patients. I would note, however, echoing Senator Plett, that such arguments have not yet been offered by the courts, which is a point the minister conceded during Question Period yesterday.

What is curious, though, is that MAID advocates who are not lawyers — but who are doctors — are also increasingly basing their case on legal arguments, such as equality and non‑discrimination, rather than on the medical evidence of irremediability, which they surely have much more expertise in than us mere mortals.

This suggests to me that the direction in which we are heading on MAID in general — and we can be sure that this is not the last MAID bill we will debate — is a focus on the rights of Canadians to determine their time of death and less on the conditions under which that should happen.

“Grievous and irremediable” may well continue to be embedded in our law as a formal condition for MAID. But as we can see in the debate over MAID where a mental disorder or mental illness is the sole underlying medical condition, it will go ahead — even in cases where irremediability is disputed — albeit subject to safeguards.

What will happen after March 17, 2024, is that MAID for mental illness as the sole underlying condition will be considered on a case-by-case basis. But as I suggested in my question to the ministers yesterday, anyone seeking MAID will seek an assessor who is predisposed to approve the request. In any case, it is almost certain that any assessor would agree with the proposition that some mental illnesses are irremediable, or they would not be assessors in the first place.

From an autonomy perspective, this is as it should be. Again, it is why I think we are going to see more and more of the autonomy argument and less emphasis on medical evidence of grievousness and irremediability.

You may recall that I asked the question to ministers yesterday about the scenario whereby a patient in this situation of requesting MAID is given authorization but where there is another medical professional who knows the patient — who is not part of the assessment team — giving an alternate view, and whether that alternate view from an expert not on the assessment team would carry any weight in the decision.

We did not receive a full answer — not because the ministers were prevaricating; we ran out of time. But I’m sure this scenario will play out after March 2024. My guess is that the medical experts who are not part of the assessment team will have little or no say in the MAID decision of a patient requesting that procedure. In this sense, the bias will be in favour of personal autonomy rather than medical evidence.

Since Senator Kutcher has cautioned us against slippery-slope arguments, let me reassure him that I am not scaremongering that this bill will lead to an avalanche of requests for MAID or that MAID is the same as suicide. I agree with him that, in the near term, the numbers of Canadians requesting and obtaining MAID will continue to be small relative to the size of our population. However, I am signalling to all of us here that there is a discernible shift in the reasoning behind arguments for MAID — from reasonably foreseeable death to grievous and irremediable condition to autonomy. We already know that reasonably foreseeable death is no longer a factor, but irremediability remains.

Depending on your point of view, the heightened focus on autonomy — as the principal or only criterion for decisions on MAID — may be seen as a good thing. We have heard as much in this chamber. This is not so much a slippery-slope argument as it is about shifting sands. We cannot and should not close our eyes to where the sands are shifting us to and whether we want to go there.

Colleagues, I invite all of us to reflect on this question before the next MAID bill arrives in the Senate. Thank you.

Honourable senators, I rise once again to speak to Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), as the official critic of the opposition.

As I stated in my second reading speech, medical assistance in dying has been and remains one of the most complex and deeply personal issues for individuals and families across the country. There is a wide range of valid opinions in this chamber on what the appropriate parameters and safeguards should be as we continue to grapple with these questions in further development of our MAID regime.

However, colleagues, I believe we have gone too far with the proposed expansion to include those with mental illness as a sole underlying medical condition. I think the introduction of Bill C-39 is evidence that we have moved too far, too quickly, and is an attempt to put a pause on a policy that we should be repealing altogether.

This is an emotional topic for so many of us, yet the facts and expert evidence need to remain paramount to this discussion. The stakes are too high.

While little has changed since I last spoke on Tuesday, I do want to touch on some of the exchanges that took place during Committee of the Whole yesterday.

Senator Batters, a tireless advocate for mental health, asked the ministers about their 2021 election platform’s promise to establish and fund the Canada mental health transfer — a commitment of $4.5 billion over five years. According to their own platform cost breakdown, as Senator Batters noted, they should have already invested $1.5 billion in mental health care. Yet, they have not invested a single dollar to date. The state of mental health care in Canada is tragic, particularly given what is proposed in this expansion.

Minister Duclos retorted with, “. . . not only are we not breaking that promise, but we are enhancing it.” I think we need to be wary of funding promises announced as achievements — enhanced as they might be — when struggling, vulnerable Canadians are still waiting for improved access to treatment.

A common theme in these debates, both in this chamber and in the special joint committee, is that it remains impossible to predict irremediability with any certainty. Yet, the ministers dismissed these concerns by stating that if there is any question as to the irremediability of the particular illness, then that individual will not get MAID. In practice, we cannot be certain that this is what will happen. Expanding MAID for mental illness still poses risks that people are receiving assisted suicide prematurely or wrongfully.

When Minister Lametti was asked about the profound lack of consensus and discomfort among psychiatric experts in Canada, he pointed to the expert panel assembled by his government — which, of course, was not appointed to study the merits of the expansion but to provide a road map. What we know with certainty is that psychiatrists do not agree that one can ever predict irremediability of a mental illness. There is no consensus on this matter.

Minister Lametti also attempted to discredit the statistics resulting from the surveys conducted by the Canadian Psychiatric Association and the Ontario Medical Association by stating that the questions were based on disinformation. Those surveys are publicly available, and the questions are clear and straightforward.

For example, the statistic that was referenced from the Canadian Psychiatric Association was the result of this question: Should persons whose sole underlying medical condition is a mental disorder be considered for eligibility for MAID? I do not believe this could be reasonably interpreted as disinformation.

Honourable senators, I asked the ministers about how they will address jurisdictional concerns. The National Assembly of Quebec, after wide consultation, tabled Bill 11 and ultimately decided not to allow MAID for mental illness. Minister Lametti acknowledged the lack of professional consensus in this area when asked about this decision. Unfortunately, he was not able to provide a clear answer on how they plan to handle this, how they can prevent cross-jurisdictional doctor shopping or which sets of guidelines Quebec clinicians will be expected to follow. Before we proceed with this expansion, it is imperative that our own Attorney General is clear on the jurisdictional considerations.

Also, since I spoke on Tuesday, Senator Gold distributed the Gender-based Analysis Plus, or GBA Plus, which indicates what impact, if any, this legislation will have on women and other vulnerable groups. Senator Jaffer asked a question related to this to the ministers as well.

While this concern was raised by several witnesses at the special joint committee, I was shocked by the findings in this particular report, considering the fact that the analysis is provided by a government department. The GBA Plus states:

In the Benelux countries, where eligibility for MAID is not limited to those suffering physically, there have been controversial MAID deaths that have occurred, and it can be expected that similar cases would emerge in Canada under this option. For example, in the Netherlands, MAID was provided to a patient in her twenties who had been sexually abused as a child because of the emotional suffering she endured following the trauma. There have also been cases of transgender individuals and people who identify as gay obtaining MAID due to the suffering associated with those aspects of their conditions.

The government’s own department is suggesting we should see an uptick in these types of cases.

The analysis also states:

It can be expected that should MAID be made available in Canada for individuals whose sole underlying condition is mental illness, we would see an increase in women seeking MAID for psychiatric suffering, and at younger ages.

This is extremely troubling. As Senator Batters said when she raised this with the ministers yesterday, on International Women’s Day, “That’s hardly the kind of gender parity that we want.”

Honourable senators, how can the government ensure that a year from now we will have the necessary data, resources and safeguards in place to protect vulnerable Canadians struggling with mental illnesses from premature death? There is no evidence to indicate that the difficulties around such important issues as predicting irremediability and the inherent risk to vulnerable persons will be resolved in a year.

Colleagues, the idea of a mental health patient receiving MAID when the irremediability of their illness is subjective and open to nterpretation troubles me greatly. We are debating the circumstances in which vulnerable Canadians live and die. The experts remain divided, yet this government is moving forward with an ideological decision that will undoubtedly put vulnerable lives at risk, and this is before a single dollar has been invested in their promised mental health plan.

The lives of Canadians battling mental illness are not disposable.

In spite of all these concerns, I will reluctantly be voting for Bill C-39. A delay of one year is clearly better than the alternative: a dangerous MAID expansion to happen next week. Thank you.

Are senators ready for the question?

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

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion agreed to and bill read third time and passed, on division.)