Resuming debate on the amendment of Senator Boisvenu.

I am pleased to support Senator Boisvenu’s amendment, which seeks to give parliamentary committees the authority to undertake, as soon as possible, a review of the access to medical assistance in dying for people who suffer from neurodegenerative diseases.

Bill C-7 is somewhat confusing in the way it addresses this critical issue. Subclause 1(2) adds a new subsection to the Criminal Code, subsection 241.2(2.1), which stipulates that, in order for paragraph 241.2(2)(a) to apply, mental illness is not considered to be an illness, disease or disability.

In the Department of Justice’s support document, as we saw earlier with Senator Boisvenu’s amendment, the concept of mental illness does not include neurocognitive or neurodevelopmental disorders.

Senator Boisvenu’s proposed amendment, therefore, prominently raises the issue of advance directives. We thought about making amendments to Bill C-7 with regard to advance directives, but that is becoming so increasingly complex and detailed that I would even venture to call it micromanagement of the Criminal Code.

As I have often said, in the case of Bill C-7, we need to amend the Criminal Code and we need to determine what is criminal and what is not. However, the more detail we get into, the more likely we are to declare less significant behaviours to be criminal or to infringe on provincial jurisdiction.

It is important to leave it to the federal government, the provincial governments and the professional organizations to determine together the best possible process when it comes to mental illness and advance directives in particular.

Senator Kutcher’s amendment proposes an 18-month time limit on the mental health exclusion provision. We’re discussing that amendment now and I support it because in three months we might be telling the government that not only does it have a deadline, a period of 18 months during which it will have to apply the mental health provisions, but it has three months before it will be asked to immediately start reviewing the situation and taking a closer look at the issue of advance directives.

I think this is important. When people talk about mental illness they often refer to Alzheimer’s and say that they want to be able to indicate in advance that when they no longer recognize their children, when they are in a situation where they have all sorts of conditions, that they want to have access to medical assistance in dying. People currently no longer have access to MAID because they no longer have the capacity to consent to it at the time when it has to be administered.

I very much support Senator Boisvenu’s amendment and I invite you to support it as well.

Would Senator Carignan agree to take a question?

Yes, of course.

Could you tell me why you support such short time frames, namely, 90 days for the creation of this committee and just one year for the study? I find these to be quite short.

Three months is how long it will take to set up the committee. I think that’s a rather long time. The minister has committed to conducting the study. This is also true for the review of Bill C-14. June 2020 was the timeline decided on for this study of Bill C-14. However, it has yet to begin. With the passage of this bill, the time frame is 90 days. This is reasonable given that this obligation already exists in Bill C-14, at least in part. This gives it the importance its deserves.

As for the 12-month period, I think that’s reasonable when you consider that, in the context of the 18-month exclusion that was applied earlier, this allows for six months to put the training and necessary measures in place. I see this as a reasonable and sensible timeline.

Senator Plett, we seem to have difficulty with translation. Sorry, Senator Plett.

Senator Plett, Senator Lankin would like to ask you a question. Will you take a question?

I am not entering at this point in time, Senator Plett, to remind you of the time you voted against something before it went to second reading. I’m asking a question that is probably unfair to ask of you, but I couldn’t ask Senator Carignan in a timely fashion.

I want to be sure the language in the amendment as I read it accomplishes what Senators Boisvenu and Carignan set out as the timeline. The 90 days in the amendment proposes that a review be undertaken — that a review be undertaken within 90 days — and the committee report be out within a year. It’s not clear to me that it is easily understood that the review doesn’t have to be completed in the 90 days. The language is vague on that. Perhaps I’m not interpreting it correctly, but I think to insist on the review starting within 90 days is absolutely appropriate. To insist that it be completed within 90 days — and depending on whether or not this is combined, on the government initiative, with the other reviews that are overdue and that were set out in Bill C-14 — that timeline may not work.

Maybe someone else, if you’re unable, Senator Plett, could respond to that. I would like to know before being asked to vote. I would like to have the clarity of knowing if the proposed amendment is ambiguous about whether or not the review would have to be both undertaken and completed within 90 days.

We are resuming debate.

I heard the speech given by my colleague, Senator Boisvenu, the substance of which was very interesting. We share the same opinion on the issue at hand, that is, advance directives in the context of diseases that cause gradual degeneration of the brain and the loss of the capacity to consent. Quebec is way ahead on this issue, and I think there is a growing consensus that we should adopt a regime of advance directives.

However, I still have some questions about the solution that is being proposed.

What is being proposed is that we set up a committee — this house, the House of Commons or a joint committee — and this committee will report within a year, which I suppose means 15 months from now. I suspect we may have an election within 15 months from now. It is likely, and we’ll have to adjust. That concerns me.

My second concern is that the current law, Bill C-14, provides, as the currently proposed Bill C-7 in its preamble states:

. . .whereas the law provides that a committee of Parliament will begin a review of the legislative provisions relating to medical assistance in dying and the state of palliative care in Canada in June 2020 —

— we know we missed that —

 — which review may include issues of advance requests and requests where mental illness is the sole underlying medical condition . . . .

Because of the way Bill C-7 was drafted, all of the witnesses we heard from did not address the issue of an advance directive. It was not part of the bill. We had a few witnesses who referred to it. Certainly, it’s a complex issue.

In Belgium, for example, where there are advance directives, there is a commission that must supervise and review on a five-year basis. They ask, “You signed that five years ago. Do you still agree?”

It is complex machinery that has to be developed. I think the parliamentary committee could look at that. But I have a concern of having this on one side and, as Senator Gold and the Minister of Justice invited us to do before, setting up a committee as soon as possible to do an overall review of Bill C-14 and the regimes. If there were two tracks going more or less in parallel, one committee more specialized on the issue of advance directives and another committee doing everything else, how could this recoup the work of the other committee? So I think we should work on pressures to have a committee looking at all these issues together in the context of the review of the bill.

I understand the purpose of what Senator Boisvenu wants to achieve and I share that. But I think I’m confident that the undertakings that Senator Gold, in this house, and the Minister of Justice made are real commitments and in the coming months we will look at the whole review. Thank you.

Senator Dalphond, would you take a question?

Yes, please.

You spent some time discussing with various psychiatrists language for your amendment and you chose “neurocognitive disorders.” Here the language is “neurodegenerative disorders.” I would like to know what you think about that. Neurodegenerative disorders include Alzheimer’s, ALS, Friedreich’s ataxia, Huntington’s disease, Lewy body dementia, et cetera. There is a whole host of them that are traditionally called neurodegenerative. However, I want to raise the issue that more recently schizophrenia and even depression — there has been a lot of work suggesting that they too may be considered to be neurodegenerative diseases; for example, multiple studies in depression have found atrophy or neural loss in various parts of the brain, including the cortex and the hippocampus, and there is increasing scientific thought that these diseases are also neurodegenerative. Do you think the language could be tightened up if it’s looking primarily at neurocognitive disorders?

It is kind of tough answering questions from an expert who is asking what you think about his expertise.

I would be inclined to defer to his expertise. But I must say that through the consultations I made, psychiatrists told us we should use “neurocognitive” rather than “neurodegenerative” concepts because it’s not exactly the same thing, as our expert just pointed out. That is why in my motion I was referring specifically to neurocognitive disorders.

Thank you very much, Dr. Dalphond — or, rather, Senator Dalphond.

Thank you, Senator Boisvenu, for the amendment and your thoughtful speech. I want to share some concerns, however, that I have with this particular amendment. Some of them have been hinted at and addressed by Senators Lankin and Dalphond. I will be brief.

First, this phrase in the amendment — “access to medical assistance in dying for persons who suffer from a neurodegenerative disease” — is unclear at least in its intent as it sits in this amendment. For example, does it mean that we should be focusing on advance requests for MAID for persons who are diagnosed with such conditions? It is a legitimate question. Or might it be focusing on how persons with such diseases are being dealt with under the current law?

Colleagues, as we know, under the current MAID regime, persons suffering from neurodegenerative diseases can be eligible for MAID if they otherwise meet the eligibility criteria in the current law. Bill C-7 doesn’t change that. So that clarity is important, as we’ve heard on more than one occasion in this debate.

Second and equally of concern is that the 12-month deadline after which or by which time a report would have to be submitted may simply be too short to enable the necessary work to be done properly. The committee needs to take the time to do its work, and things may get in the way. The pandemic may get in the way. There may be an election within the 12 months. There is certainly a summer period. If there is an election, there is a caretaker period. It’s not clear that the 12 months would be sufficient for the work to be done properly as it must indeed be.

Finally, and this was a point other colleagues made, there is an additional challenge because this review and study would overlap with the parliamentary review that is contemplated and required under Bill C-14 and to which the government is committed, as I’ve stated on more than one occasion in this chamber. That larger review would be at the same time looking at this and other issues if so contemplated.

These reasons — the lack of precision of what it actually is intending to do and the challenges of actually accomplishing that in a timely fashion and the potential overlap or competition with the parliamentary review that will be in place between now and then — lead me to be unable to support this amendment. I would respectfully ask colleagues to oppose it as well.

Are senators ready for the question?

It was moved by the Honourable Senator Boisvenu, seconded by Senator Carignan, that Bill C-7 not be read a third time but amended — may I dispense?

If you are opposed to adopting the motion in amendment, please say “no.”

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

Those opposed to the motion and are in the Senate chamber, please say “nay.”

In my opinion, the “nays” have it.

I see two senators rising. Do we have an agreement on a bell?

We will have a vote at 7:57. Call in the senators.

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

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

Honourable senators, the question is as follows:

It was moved by the Honourable Senator Boisvenu, seconded by the Honourable Senator Carignan:

That Bill C-7, as amended, be not now read a third time, but that it be further amended on page 9 by adding the following after line 30:

“Review

5 (1) Within 90 days after the day on which this Act receives royal assent, a comprehensive review of access to medical assistance in dying for persons who suffer from a neurodegenerative disease must be undertaken by any committee of the Senate, the House of Commons or both Houses of Parliament that may be designated or established for that purpose.

(2) The committee must, within one year after the review is undertaken, submit its report on the review, including a statement of any legislative changes that the committee recommends, to the House or Houses of Parliament of which it is a committee.”.

Honourable senators, this evening I want to tell you the story of a real Albertan woman. She was a 58‑year‑old wife and mother from the Red Deer region, and for years she had lived with untreatable pain. Involuntary muscle spasms radiated from her face and head into her shoulders. Her eyelids had spasmed shut, leaving her effectively blind. She suffered constant migraines. Her digestive system had all but shut down. She’d lost so much weight and muscle mass that she could no longer walk, and her pain was so unremitting she could only sleep when heavily medicated. And so, with the support of her husband and her adult children, the woman, known as “E.F.,” petitioned the court for medical assistance in dying. This was April of 2016, after the Supreme Court’s Carter decision but before the passage of the bill then known as Bill C-14.

An Alberta judge granted her petition. The Alberta government did not contest that ruling but the federal government forced her to the Alberta Court of Appeal, arguing against allowing her to end her life.

Now you may wonder why the Trudeau government fought so hard to keep E.F. alive and in agony, especially after Carter. True, her death was not reasonably foreseeable, but that was not the Crown’s primary concern. The government opposed her application because of the cause of her illness. She had been diagnosed with a severe conversion disorder, a psychiatric condition in which the body responds to stress or trauma by exhibiting physical symptoms with no clear organic or neurologic cause. The Crown argued that E.F. could not receive medical assistance in dying because her physical torments had their origins in a psychiatric condition.

But her sufferings were absolutely real, even if they had their genesis in her brain and not some less-complicated organ. E.F. was not deemed clinically depressed. She wasn’t delusional nor psychotic. Her doctors deemed her competent. But she was in unbearable torment and none of her neurologists, psychiatrists or internists could cure her.

The Alberta Court of Appeal agreed that she was entitled to all the rights laid out in Carter because, they said, “Persons with a psychiatric illness are not explicitly or inferentially excluded . . .” from access to MAID by the Supreme Court. Justices Peter Costigan, Marina Paperny and Patricia Rowbotham wrote:

The decision itself is clear. No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not.

The judges continued:

The court’s decision was premised on competent individuals being entitled to make decisions for themselves in certain circumstances. The court recognized that there was a need to protect the vulnerable from abuse or error, but determined that a properly administered regime is capable of providing that protection.

And so, E.F. was able to slip away, peacefully, with her family around her: her body, her choice, her freedom.

Yet now we have Bill C-7, which specifically denies equal treatment under the law to those whose irremediable suffering is deemed to be solely due to mental illness. What is a mental illness? Bill C-7 never deigns to define the term, and even after today’s amendments things are still murky. Does it include patients with Lewy body disease, someone with symptoms caused by an inoperable frontal lobe tumour or traumatic brain injury, or someone with intractable hereditary schizophrenia? If we can pinpoint a cause — something we can see on a scan or diagnose with a test — is it still mental illness or is it just, well, an illness?

We are still captive to a 19th-century paradigm that sees diseases of the mind as a kind of spiritual weakness. Even today, we discuss them as though they are something that can be cured by talk therapy or yoga, rather than something caused by a biochemical imbalance, brain insult or neurological malfunction.

While the amendments we have accepted today do improve the bill, I want to go on the record, inspired by Senator Woo, to underline my profound opposition to the mental health exclusion even after the amendments.

Section 15 of the Charter says every individual has the right to equal protection and benefit of the law without discrimination based on mental or physical disability. However, Bill C-7 explicitly denies equality and autonomy to Canadians with certain particular illnesses because of archaic prejudice.

It is established Canadian law that people with mental disorders who are judged competent have the right to make choices about their medical care. In 1991, in Fleming v. Reid, the Ontario Court of Appeal put it this way:

Mentally ill persons are not to be stigmatized because of the nature of their illness or disability; nor should they be treated as persons of lesser status or dignity. Their right to personal autonomy and self-determination is no less significant, and is entitled to no less protection than that of competent persons suffering from physical ailments.

We surely can’t reverse 30 years of legal precedent now. The unreasonable discrimination of C-7 cannot be saved by section 1 of the Charter. It fails the Supreme Court’s own Oakes test on three counts. The Crown’s goal in crafting this legislation is clearly pressing and substantial, but denying MAID to an enumerated class of Canadians based solely on an anachronistic misclassification of their medical condition is not rationally connected to the purpose of the law. It’s an irrational perversion of the law’s avowed goal.

Nor does the exemption count as minimal impairment. It’s the maximal impairment conceivable. Nor is the effect proportionate. Safeguards could and would be put in place to ensure that a patient was mentally competent, that they were not delusional nor suffering from a treatable or temporary depression, nor under social or economic duress. Instead, without any effort to strike a balance or find reasonable accommodation, the Crown intended to deprive an entire class of Canadians of their security of the person simply because they claimed it’s too hard to uphold their Carter and Charter rights.

Not every person with a mental illness has the necessary capacity to make life-and-death decisions. Any psychiatric patient requesting medical aid in dying would need careful, individual assessment. But mental illness is not an all-or-nothing category. As then Chief Justice Beverley McLachlin put it in the landmark Starson case, “Mental illness without more does not remove capacity and autonomy.” No one with clear capacity should have their autonomy automatically denied without recourse. Such discrimination is not saved by arguing that we are doing it to protect the vulnerable, that we have to act in their best interests because we, paternalistically, know best.

Senator Gold told us in December that we must protect vulnerable persons from being induced, in his words, to “. . . commit suicide at a time of weakness.” But MAID is the antithesis of suicide, and people are not weak because they no longer choose to bear the unbearable.

The Government Representative has told us:

Bill C-7 is based upon the assumption that persons suffering from mental disorders can, in fact, improve; that their suffering, though intolerable in the present, may be alleviated in the future through treatment; and that their medical condition, though grievous, may not in fact be irremediable.

But we can’t hold suffering Canadians hostage because of the faint hope or the vain hope of some imagined therapy in some imagined future.

There has been so much passionate, heartfelt debate here about protecting the vulnerable, but surely the most vulnerable people of all are those who are trapped in agony, asking to die with dignity — the very right Sue Rodriguez fought for — out of bravery, not weakness — in 1993.

I understand concerns that allowing MAID for people who are not terminally ill could send a message that the lives of those with disabilities are deemed not worth living, but we should all support the principle of autonomy. No one, especially a person with a disability, should want to live in a world where the state can assert control over our bodies or discriminate on the basis of disability. We must respect the capacity and liberty of all Canadians. We must do more to ensure authentic autonomy to those living with disabilities, ensuring their right to proper economic, social and medical resources. At the same time, we must respect the decisions of competent people who determine — of their own free will and without coercion, overt or subtle — that their suffering is unbearable to them.

These two goals need not be antithetical. They are both grounded in our shared belief in personal liberty and the right to self-determination. Our bodies and our minds belong to us, not to the Crown. If we cannot be sovereign over our own lives and our own souls, then we are enslaved indeed.

Thank you, hiy hiy.

Honourable senators, I rise today to voice my concerns about the expansion of assisted suicide in Bill C-7 and the potential ramifications for Canadians suffering with mental illness.

Currently, people suffering with mental illness as a sole condition are excluded from accessing MAID under Bill C-7 — at least, that was the case until earlier today. I submit this prohibition must remain intact. Already, several other parliamentarians have indicated a willingness to begin to push that boundary with a sunset clause that would lift the mental illness exclusion after only a few months and, in fact, shockingly, this was passed in the Senate today.

So, to the government and to members of the House of Commons, I am pleading with you not to do this. We cannot — we must not — move toward the offering of assisted suicide to people suffering from severe mental illness. There are simply too many unknowns and the risks are too great.

During our Legal Committee hearings on the matter, some pro-MAID advocates argued that the mental illness exclusion was discriminatory, given that people with intolerable physical suffering are allowed to access MAID. Many medical practitioners disagreed. Among them was psychiatric expert Dr. Sonu Gaind, who said:

Some have suggested the unpredictability of mental disorders is no different than that of physical disorders. This is simply untrue. . . . we do not understand the pathophysiology of almost any mental disorder. It is a false equivalence to equate the unpredictability of illnesses like cancer, neurodegenerative diseases, or disorders with known underlying biology, with mental illnesses that we lack fundamental understanding of.

Dr. Gaind went on to say that not only is there a lack of consensus in the psychiatric field on the irremediability and predictability of mental illness but also a lack of evidence.

He stated:

Pretending there are no differences between mental illness and physical illness for the purposes of MAID borders on — and I think I am qualified to say this — delusional. It is not about infantilizing anyone or removing their autonomy. People themselves wish to continue living when they improve. It is about avoiding discrimination by ensuring we don’t set evidence-free policy, exposing our loved ones to arbitrary assessments with no standards, that can lead to their premature deaths.

I also wanted to clarify one issue we encountered during the Legal Committee’s study of Bill C-7. When I asked our former colleague the Honourable Serge Joyal what mental illnesses he considered irremediable, he paraphrased CAMH witness Dr. Tarek Rajji as having told the committee that:

. . . 30% would be in a situation which could be cured; 30% would be in between, where they might be cured but we don’t know; and 30% of people we know can’t be cured. Those are irremediable.

That is, in fact, incorrect. Dr. Rajji had something quite different. Dr. Rajji actually said, in reference to mental illnesses, “. . . 30% of people go into remission, 30% stay the same and 30% get worse.” Obviously, just because a mental illness gets worse does not mean it is irremediable. There are many people whose mental illness gets worse but then, thankfully, gets considerably better.

The total lack of consensus on the irremediability of mental illness is not a matter that will be resolved within a matter of months, even where a sunset clause is proposed for 18 months. The Council of Canadian Academies, drawing together the top experts in the fields of law and medicine, could not find any consensus on this issue in 18 months. Several medical experts at our Legal Committee spoke to the fluctuating nature of mental illness and warned against extending assisted dying for that reason.

Dr. Harvey Chochinov testified before our Legal Committee that suicidality had a tendency to waiver, stating, “. . . this idea that someone makes up their mind today and it is steadfast, the data does not bear that out.”

Dr. Scott Kim agreed. Regarding legalizing psychiatric MAID in Canada, he said:

There would be significant risk of wrongly ending lives of many patients because either they are not competent and/or . . . who would have changed their minds about MAID with time and treatment, and maybe regained a will to live.

Clearly, approving psychiatric patients with intolerable emotional suffering for assisted suicide runs an unacceptable risk of ending a life in error or prematurely.

Dr. Mark Sinyor noted the irony that, if the mental illness exclusion were to be removed:

. . . it will result in a large number of premature deaths, the outcome which the original Carter ruling was explicitly rendered to prevent.

Our Legal Committee heard the moving testimony of Mark Henick, a mental health advocate who has experienced both treatment-resistant depression and attempted suicide. I asked Mark if he thought he would have taken advantage of assisted suicide during his darkest moments of depression if MAID had been available to those solely with mental illness at the time. He responded:

I absolutely would have. The suffering was so grievous that I couldn’t see anything outside of it. . . .

So I hope I never fall into that place again where I can’t see outside of my own blinders — the blinders that the illness has put on me — because I don’t think this should be an option. I’ve had a beautiful life since I was able to get to the other side of that mountain.

There are some medical experts and academics who are pushing to extend assisted suicide to those suffering with mental illness. We’ve heard from a few of them at committee but, by and large, this is a small but vocal group within the community. Some of their views tend toward the extreme. Professor Jocelyn Downie, for example, said at committee that there should be no legislated minimum age for children to access assisted suicide. I think most medical practitioners — and Canadians — would disagree.

Yet another, Dr. Derryck Smith, touted his ability to assess capacity and consent of psychiatric patients for MAID. He revealed proudly that he was the psychiatrist who provided the assessments of E.F. — the case that Senator Simons just referenced — a woman with a rare psychiatric condition who was approved for MAID in 2016 by the Alberta Court of Appeal. Dr. Smith admitted that he made that assessment only by reviewing her medical file. He did not examine her, nor did he ever meet her before approving her death. It is shocking that this pro-expansionist MAID advocate believes his assessment meets his profession’s standard of care.

As noted, some senators proposed amending Bill C-7 by placing a sunset clause on the carve-out of mental illness as a sole underlying condition. I could not be more opposed to this idea, given the difficulties I’ve already described regarding the unpredictable nature of mental illness.

But there also seems to be a misunderstanding about what a sunset clause would achieve. It would not just postpone the question of whether to include mental illness as a sole underlying cause until a consensus on the matter of irremediability of mental illness could be found, if ever. At the expiration of a sunset clause, psychiatric MAID would automatically be allowed. It would be a sunset clause to actually sunset the lives of vulnerable Canadians. I think that is an incredibly dangerous idea, and I would encourage the federal government and members of the House of Commons to think twice about considering it.

Honourable senators, we need to reflect extremely carefully on any expansion of assisted suicide. There are always unanticipated risks when boundaries are moved. Take, for example, the effect it would have on women. Given that psychiatric MAID is enacted in only a few countries around the world, data is largely limited to international sources, but Dr. Scott Kim presented evidence that “. . . a robust, consistent finding across countries over time” showed that 70% of people who seek psychiatric MAID are women, and this is in keeping with the higher number of women who attempt suicide. Currently, women are two to three times more likely than men to attempt suicide, while men are three times more likely to die by suicide because they use more lethal means.

Extending MAID for psychiatric reasons alone, however, would increase the risk of death by suicide for women because it would give them direct access to the guaranteed lethal means of suicide.

What message does expanding MAID to include mental illness send to society at large, to the medical community and especially to the vulnerable people who struggle with mental illness? To them, it says, “There is no hope for you.” It says, “Give up; it’s just not worth it anymore.” This flies in the face of everything we know about suicide prevention, and it thwarts any medical standard of care to keep a suicidal patient safe. It normalizes suicide and, given the current branding of medical assistance in dying as a peaceful, beautiful and empowering choice, to a person in emotional distress, it might even seem a more attractive alternative than the exhausting struggle to find a successful treatment.

Allowing people with mental illness to access assisted suicide will change the relationship of trust between patient and physician. If you are suicidal with intolerable psychological suffering, your psychiatrist tells you that there is no longer any hope for you and that assisted suicide is a “rational” option, what reason do you have to hope that things will get better for you? A suicidal person already wants nothing more than for their emotional pain to end, and now their doctor has just given them a fail-safe way to make that happen. It is well known that access to the means to suicide is a significant risk factor for its completion.

Fellow parliamentarians, there are no do-overs with the final act of assisted suicide. There is no room here for mistakes. If there is any chance we are allowing the premature termination of the life of someone who suffers from mental illness rather than providing them with the opportunity to find a treatment that works, we have failed them as legislators. We simply must err on the side of caution and maintain the mental health exclusion in Bill C-7. Thank you.

Honourable senators, I rise to express some serious reservations about extending MAID to individuals suffering solely from mental illness. Mental disorders can cause extreme intolerable suffering, just like physical illness. Moreover, psychological suffering is often more difficult to alleviate. It would be impossible for me, however, to ignore the necessary balance between the individual rights of people with psychiatric illness and our duty as a society to protect the most vulnerable of them. The Charter protects the individual right to non-discrimination, but that protection is not absolute, and Parliament has room to manœuvre. After all, we are not a court; we are legislators.

The individual choice to receive MAID is made in a social context that, for many sick people, is marked by scarce psychiatric resources, poverty and isolation. We must therefore ask ourselves if it is truly always a free and informed choice.

Like other members of this place, I’m intimately familiar with mental illness. I have a brother who battles his demons, and my sister and I have been looking after him for a long time. His most intense periods of suffering are intolerable. He truly suffers constantly, and it’s up to us, his family, to bring him back to reality, to life’s simple pleasures, because psychiatry hasn’t helped much.

My personal experience has contributed to shaping my views. In my opinion, there is no absolute truth in the field of mental health and there is very little irrefutable scientific evidence when it comes to the trajectory and evolution of a mental illness. On the contrary, reputable Canadian psychiatrists have many different opinions, all sensible and informed. Because there is no broad consensus, I believe that we need to err on the side of caution.

No matter what some may think, there are also divisions in Quebec. According to a survey conducted by the Association des médecins psychiatres du Québec, 54% of psychiatrists are open to practising MAID, at least under certain circumstances, while 36% are against doing so. A dissident group of psychiatrists and psychiatry professors in Quebec sent a brief to the Senate and spoke to the media about this. They said, and I quote:

As experts working for the good of our patients, we believe that supporting medical assistance in dying for patients with mental disorders is a very bad idea at this time. First, it is inappropriate because the desire to die and refusal of care are often an integral part of the illness and they improve with treatment of the mental disorder. It is also dangerous because the desire to die fluctuates, corrects itself, improves; the prognosis is uncertain, never irreversible and even often favourable, and this desire declines over years rather than days or months.

The solid report by the Council of Canadian Academies said the following:

Most people with mental disorders have the capacity to make treatment decisions, but evidence shows that some mental disorders can impair decision-making and increase the risk of incapacity.

Dr. Tarek Rajji from the Centre for Addiction and Mental Health at the University of Toronto confirms that there is no evidence to predict the course of mental illness and therefore each evaluator of medical assistance in dying could have their own interpretation of the criteria related to the irremediability of the illness. It seems premature to me to be considering medical assistance in dying for patients with mental disorders. In fact, the report by the Association des médecins psychiatres du Québec notes the following:

For MAID [for patients with mental illness] to be humane, consistent and fair, we must propose certain steps and resources regarding access to care . . . .

As a group, persons with mental disorders experience much greater socio-economic difficulties than the general population. . . . they face enormous challenges when they try to access their fair share of health resources . . . . Even access to primary mental health care can be limited and highly uneven.

In short, if a patient can’t see a psychiatrist quickly, why should we focus on their right to medical assistance in dying? Why focus on the possibility that the bill is unconstitutional, when we are dealing with fundamental problems of access to care and services?

I have doubts, very serious doubts, about our priorities. I am certain that the lack of access to psychiatric resources will not be fixed quickly. In any case, how can a federal bill address this issue, which is clearly an area of provincial jurisdiction? Psychiatrist John Maher’s testimony at committee was disconcerting. I quote:

My patients are asking: “Why try to recover when MAID is coming and I will be able to choose death?” Some of my patients keep asking for MAID while they are getting better but can’t recognize that yet.

Dr. Maher added:

. . . if 100 psychiatrists assess a person with uncertain decisional capacity, 35 will have one opinion and 65 will have another. Different psychiatrists have different skill sets and levels of experiences.

Many other practitioners, both Indigenous and non-Indigenous, including Tyler White, Dr. Mark Sinyor and Dr. Rod McCormick, pointed out that access to medical assistance in dying could undermine suicide prevention efforts. This is particularly troubling when we think of the scourge of suicide in Indigenous communities, as Scott Robertson stated in committee. Would a delay in expanding MAID to psychiatric patients make it possible to consider these serious social problems and improve access to health services? I doubt it. Furthermore, we are in a pandemic, so everything takes time, much more time than usual.

If we move forward, we will be the fourth country in the world, only the fourth, to go so far down the road to providing access to euthanasia.

Psychiatrist Mark Komrad has studied the Belgian system, which has been in place for 18 years. According to him, one of the most common motivations for psychiatric euthanasia is being tired of living or loneliness. These observations led to the creation of recovery groups as another choice for psychiatric patients who have been approved for euthanasia.

A new speciality is emerging in Belgium: psychiatric palliative care. This speciality involves more intensive psychiatric care to provide relief for patients who are suffering unbearably. This goes without saying but, ideally, these initiatives would have been implemented before euthanasia came into force.

There was also a momentous trial in Belgium involving the three doctors who had authorized the euthanasia of Tine Nys, a woman who was not suffering from an incurable illness, as required by law, but who was suffering from stress and the consequences of a separation. She had suffered from depression and drug addiction in the past. She had not received psychiatric care in 15 years and had just been diagnosed with as yet untreated autism. Her sisters are the ones who filed a complaint. The doctors were ultimately acquitted on the basis of reasonable doubt, but this case added to the controversy surrounding this practice.

As a society, we need to ensure that we’re taking time to think about the conditions for expanding access to MAID to people with mental illness. This is a serious issue and I don’t think we’re quite ready. Thank you.

Honourable senators, today I rise to discuss the mental illness exclusion introduced in Bill C-7.

Let me say that the 145 or so witnesses who appeared before the Legal and Constitutional Affairs Committee in recent weeks gave us a better understanding of the issues around medical assistance in dying. Their testimony had an impact on us all. Over several days, people shared markedly different opinions with us. One might even say that the meetings highlighted a gap between the reality of medical assistance in dying in Quebec and that in the rest of Canada.

We observed that nearly all of the witnesses from outside Quebec said they didn’t know how Quebec’s medical assistance in dying system works. The meetings helped us learn more about that system thanks to what we heard from many witnesses from Quebec, including people with disabilities, general practitioners, medical specialists, nursing staff who administer medical assistance in dying or evaluate requests for MAID, legal experts, lawyers, professors and a former minister.

These witnesses provided us with information about the MAID system overall, and specifically talked about the work of the Collège des médecins that began in 2008, the broad citizen consultation conducted by a bipartisan parliamentary committee in various towns and cities across Quebec over several years, the Quebec MAID legislation that passed in 2014 and its ensuing regulations, the guidelines, the reports of the Quebec commission on end-of-life care and the data collected, and, lastly, the research of experts and regulatory bodies on the practice of MAID.

I would remind the chamber that, at the request of the Collège des médecins, the Association des psychiatres du Québec released a report last November on the specifics of MAID in cases of persons suffering from psychiatric disorders. Representatives of several organizations expressed a willingness to work with their counterparts in other provinces. It should be noted that the Ordre des psychologues du Québec also released a report in December 2020 on issues related to MAID in the context of mental health in which it advocates for the right to access MAID in cases where a mental disorder is the sole underlying condition.

We also heard witnesses from outside Quebec, who described the conditions in which they provide or evaluate the requests for MAID. None of these witnesses tried to minimize the fact that these are complex and singular situations, which doesn’t mean that patients shouldn’t be treated fairly and with dignity until the end.

Based on what we heard from these witnesses, it seems that the mental health exclusion introduced in Bill C-7 contradicts the principles set out in the Supreme Court of Canada decision in Carter in 2015. The government presents Bill C-7 as a government response to the Truchon decision, which was delivered in fall 2019 by Justice Baudouin of the Superior Court of Quebec, a federal trial court. From that perspective, Bill C-7 represents an unacceptable step backward. In fact, Truchon is an example of the Carter ruling being applied.

It is important to provide some context for Carter. This was one in a long series of Supreme Court decisions that came after the Charter of Rights and Freedoms was entrenched in the Canadian Constitution in 1982 and focused on the relationship between the autonomy of persons and the state’s intervention in people’s lives, especially when the state intends to define what constitutes a crime and what penalties apply when one is found criminally responsible. Defence lawyers pointed this out at committee.

Truchon recognized that “the case law on the principles of self-determination, autonomy and human dignity was evolving,” starting with Jones in 1986, which affirmed for the first time the principle that the autonomy of the individual is expressed through the notions of dignity, liberty and security.

In 1988, Morgantaler reaffirmed the principle of the autonomy of the individual by making a direct connection between human dignity and bodily autonomy, free of state interference. The Supreme Court reiterated in Blencoe in 2000, Chaoulli in 2005 and PHS Community Services Society in 2011, the principle whereby freedom is the right to make fundamental personal choices about bodily integrity and medical care without state intervention.

In reversing the 1993 Rodriguez ruling, and I quote Justice Baudouin:

. . . Carter reaffirms the scope of the individual rights of life, liberty and security of the person and lays the foundation for the legalization of medical assistance in dying throughout Canada.

Carter establishes the principle that the right to life, liberty and security, which is protected under section 7 of the Canadian Charter of Rights and Freedoms, “is rooted in their [some people’s] control over their bodily integrity.”

According to the court, the prohibition against MAID for competent adults with grievous and irremediable medical conditions that cause them enduring and intolerable suffering infringes on the rights to liberty and security of the person.

In its decision, the court set out the following subjective criterion:

. . . a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual . . . .

That applies regardless of the source of that person’s suffering or the diagnosis they have been given.

We’re therefore talking about what the person in question thinks about their health problems, not what anyone else, even a doctor, thinks about them.

A doctor testifying in committee said that medical paternalism has evolved, and the Supreme Court recognized this in Carter. Bill C-7 is inconsistent with this subjective criterion. A number of my colleagues have spoken about this notion, which isn’t established in the medical community. This addition therefore constitutes a major step backwards because it could create ambiguity around some of the concepts that already exist in the act and that have proven to be difficult to regulate, according to the witnesses who appeared in committee.

The Senate took a small step forward in passing the two amendments today. We must ensure that we continue to move forward to protect individual decision-making autonomy, regardless of the stage or cause of an illness. Most importantly, we must recognize that individuals have the right to express their wishes in an advance directive, which will enable them to continue to live in dignity right up to the moment they have chosen as the end of their life. Thank you.