Hon. Pierre J. Dalphond: Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.

Hon. Pierre J. Dalphond: Honourable senators, I rise today in support of Bill C-39. As you know, this bill proposes to delay by one year, until March 17, 2024, the possibility for those suffering from an irremediable mental illness causing them intolerable pain to request medical assistance in dying.

The bill has only one very short provision that targets only one provision of the Criminal Code, the one that makes mental illness ineligible for medical assistance in dying.

My speech has three parts. First, I want to talk about where the exclusion for people suffering from mental illness came from. Second, I will explain why the Senate refused to support that exclusion in 2021, and third, I will talk about the reasons for extending the exclusion.

The debate we’re having here today is in response to the September 11, 2019, ruling of the Quebec Superior Court in Truchon and Gladu.

This ruling found unconstitutional some provisions of the Criminal Code and some provisions of Quebec’s Act Respecting End-of-Life Care, which made a reasonably foreseeable death a condition for accessing medical assistance in dying. According to the judge, this criterion, which wasn’t suggested by the Supreme Court in its 2015 ruling in Carter, violated the constitutional rights of Mr. Truchon and Ms. Gladu, namely the right to equality.

Both the Government of Quebec and the federal government accepted that ruling and promised to take appropriate action.

At the federal level, this took the form of Bill C-7, which was introduced on October 5, 2020. The bill added a second pathway to medical assistance in dying for people suffering from an incurable disease that is causing them intolerable suffering, without that suffering being the cause of imminent or foreseeable death.

By contrast, in Bill C-7, the government proposed to deny access to medical assistance in dying to individuals suffering only from mental illness, arguing that this was an appropriate measure given the lack of sufficient consensus among psychiatric experts at the time.

[English]

This is the origin of track 2 and of the exclusion of those suffering from only a mental illness, even if their illness was found to be incurable and the source of unbearable suffering as explained by Senator Kutcher a few minutes ago.

I move now to the reasons why the Senate disagreed with the permanent exclusion. As you may remember, Bill C-7 received much attention in the Senate. First, there was a pre-study in the fall of 2020 that led to a comprehensive report released in February 2021, which has been quoted extensively by many witnesses before the joint committee recently.

On the exclusion of mental illness as a sole condition, our legal committee reported a lack of consensus about the irremediable character of many mental illnesses and signalled that renowned legal experts, such as Professor Downie of Dalhousie University, have argued that the exclusion was unconstitutional.

During the third reading debate in the Senate, five amendments were adopted — some after lively debates. One was the addition of an 18-month termination date on the exclusion of those suffering solely from a mental illness. For the majority of this chamber, this group exclusion was discriminatory, resting on stereotypes and biases against mental illness and thus even unconstitutional. Only a mechanism providing for a case-by-case assessment of requesters of MAID could be acceptable.

The government finally agreed with this conclusion, ending the group exclusion through a sunset clause two years after Royal Assent. That’s going to be March 17, a few days from now. In addition, the government proposed an independent review by experts in relation to MAID and mental illness, including safeguards.

A majority of the House of Commons agreed with these proposals, and we later accepted them. As a result, the exclusion from track 2 of those suffering from a mental illness was to end on March 17, 2023.

At the time and to this day, many psychiatrists and citizens believe that a group exclusion for individuals suffering from an incurable mental illness is the option to be preferred. This is the goal of Bill C-314, a private bill tabled yesterday in the other place.

But it remains that this is not the view of most Canadians according to a recent poll conducted by Ipsos for Dying With Dignity Canada. In the context of treatment-resistant mental illness with intolerable suffering, 34% of Canadians strongly support access to MAID in such a case, 48% somewhat support access, 10% somewhat oppose and 7% strongly oppose.

(1620)

Essentially, over 80% of Canadians think that access to MAID should be available for those suffering in that type of situation, which is incurable illness and unbearable suffering.

In my view, those numbers confirm that the Senate rightly concluded that a permanent exclusion was not only unjustified and likely unconstitutional, but also that Canadians do not support further stigmatization of those suffering from an incurable mental illness. The law should not treat them as unable to make a choice for themselves by denying access to track 2 if they are otherwise eligible and meet the safeguards provided for track 2.

Bill C-39 does not revisit the exclusion issue but, rather, it extends by one year the current temporary exclusion. We must ask this: Why postpone the coming into force of track 2 access for those suffering solely from a mental illness who otherwise meet the stringent requirements of track 2? The answer is that Parliament should proceed with some caution in lifting the exclusion in order to allow provinces and territories sufficient time to prepare for the required assessments. Harmonization and proper training for assessors are critical.

As Minister of Health Duclos has noted, the development of practice standards for MAID falls outside direct federal responsibility. He also said that the government:

. . . is actively engaging [provinces and territories] and the Federation of Medical Regulatory Authorities of Canada on the development of consistent practice standards.

In his speech, Senator Kutcher referred to the efforts that are being deployed across Canada to achieve such harmonization and develop assessment procedures and standards.

The recent Special Joint Committee on Medical Assistance in Dying, where I had the honour to serve with Senators Martin, Kutcher, Mégie, Wallin and 10 members of Parliament, shared the responsibility of completing an interim report and a final report on various issues related to MAID. The interim report tabled last June was on MAID and mental disorders, and it was dedicated to reviewing the task force report.

A government response followed in October. By that time, everybody was working hard to meet the requirement of March 17, and the government was hopeful that date would be met.

However, further witnesses heard by the committee led the committee to conclude in its final report, which was tabled on February 15, that we were not yet ready to move forward. That final report includes 23 recommendations, including one in relation to mental disorders. That recommendation is to agree with the government about postponing the date of March 17 and also proposes to re-establish a joint committee five months before the new exclusion date, which is March 2024, in order to verify the degree of preparedness attained for a safe and adequate application of MAID for mental disorders as a sole underlying condition. Again, that recommendation reflects a cautious approach.

However, there are also risks to not removing the exclusion in a timely way. The special joint committee noted in its report that the delay in eligibility under Bill C-39 may prolong the suffering of some individuals who are otherwise able to receive MAID. Senator Kutcher referred to that, and I believe most of you received emails from those people, urging us not to accept Bill C-39 and not delay further access to MAID.

Essentially, adults who meet the eligibility criteria for MAID — including irremediability, informed consent and intolerable suffering — currently face discrimination as a class when their condition is mental as compared to physical, or when compared to having both physical and mental conditions, when we don’t dispute their ability to consent to MAID.

In my view, Charter compliance very likely requires a MAID law that allows for a case-by-case analysis of eligibility based on individual facts, such as assessing capacity and past attempts at treatment. Such an approach will occur for cases of mental disorders once the sunset clause expires — now in March 2024.

Indeed, Parliament has considered MAID in the context of mental disorders for a long time. Senator Seidman and former Senators Cowan, Joyal, Ogilvie and Nancy Ruth served on another special joint committee on MAID in the Forty-second Parliament. In their 2016 report over seven years ago, recommendation 3 urged:

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

On legalities, let me refer to lawyer Shakir Rahim’s testimony to the special joint committee on October 4, 2022. He discussed MAID and mental disorders in relation to the 2020 Supreme Court decision of Ontario (Attorney General) v. G, a leading case on section 15 equality rights. During our third reading debate on Senator Kutcher’s amendment to Bill C-7 I referred to that decision of the Supreme Court regarding mental disorders. The special joint committee’s final report also refers to that decision.

As Mr. Rahim told the committee:

In my view, the recommendation of the expert panel on [medical assistance in dying where a mental disorder is the sole underlying medical condition] conforms to the spirit and letter of the section 15 jurisprudence. . . .

Senators, these conclusions show the necessity of having access to MAID for mental disorders.

[Translation]

However, it must be done in a way that ensures that there is no slippery slope and no mistakes that might contribute to opposition to this expansion. That’s why, honourable senators, I suggest that we pass Bill C-39, and I have a message for anyone who may be listening. This is not about opposing your right to MAID; it is simply a pause. Your right to medical assistance in dying is constitutionally recognized and will soon be available.

Thank you.

[English]

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise today to speak to Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), as the official opposition critic in the Senate.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise today to speak to Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), as the official opposition critic in the Senate.

Medical assistance in dying, or MAID, has been and remains one of the most complex and deeply personal issues for individuals, families and for our nation. The issue of expanding MAID eligibility to those suffering from mental illnesses is deeply personal for me as well, as I know individuals who have suffered and are living with complex mental illnesses, and I have witnessed first-hand what they and their families must endure in the process of finding the right treatments and solutions. Every case is unique. Assessments and effective treatments may take a long time, even decades, but I am grateful that MAID was never an option in their darkest hours, as it will be for others within a year’s time with the passage of C-39. Bill C-39 extends the exclusion of eligibility for receiving MAID in circumstances where the sole underlying medical condition identified is a mental illness until March 17, 2024 — a one-year delay from what is set out in the current law.

Bill C-7 expanded the eligibility for MAID to persons whose natural death is not reasonably foreseeable. Originally, the bill excluded eligibility to receive MAID in circumstances in which mental illness was the sole underlying medical condition. However, Senator Kutcher introduced an amendment at third reading to expand MAID to those with mental illnesses as a sole underlying condition, which was adopted with majority support in this chamber. The government accepted this amendment, and the law that was ultimately passed included a sunset clause date of March 17, 2023. This would mean that MAID for those suffering from mental illness would become legal next week unless we adopt the government’s eleventh-hour legislation, Bill C-39, to delay the expansion for one year.

With the expansion, Canada will become one of only four countries — including Belgium, Luxembourg and the Netherlands — in the entire world to allow MAID for some of the most vulnerable people in our society. Canada becoming a leader in the world in our rapid expansion of MAID is not something most Canadians would want Canada to be known for, in my opinion.

As honourable senators are aware, I served as joint chair of the Special Joint Committee on Medical Assistance in Dying, along with Liberal Member of Parliament Marc Garneau and with senators in this chamber who have already been named. The committee recently tabled our final report after examining several topics and issues involving MAID. The issue of expanding MAID to those with mental illnesses as a sole underlying medical condition was studied in the interim report tabled in June 2022. It was a difficult subject matter then, and it remains difficult as we debate C-39 today.

The committee held 36 meetings in total, heard from close to 150 witnesses and received more than 350 briefs and submissions. We heard compelling and emotional testimony from mental health patients, patient advocates, scientists, psychiatrists, MAID assessors and providers and other mental health professionals. There was a wide range of views brought forward debating the science, ethics, practicality and readiness for this proposal. The witnesses on all sides of the issue were passionate and informative. The overarching takeaway, however, was that there is no medical or scientific consensus at this time on the concept of MAID for mental illnesses. Many of those who were in favour of this expansion acknowledged that we are not ready to proceed and recommended further delay of this expansion.

In fact, in December 2022, even the Association of Chairs of Psychiatry in Canada, which includes the heads of psychiatry departments at all 17 medical schools, issued a statement raising concerns about the looming March 17, 2023, deadline and the lack of readiness for this expansion to take place safely and reliably, calling on the Liberal government to extend the sunset clause for MAID MD-SUMC.

As reported in the National Post on December 15, 2022:

. . . a lack of public education on suicide prevention as well as an agreed-upon definition of irremediability, or at what point someone will not be able to recover, are important, unresolved issues.

“Further time is required to increase awareness of this change and establish guidelines and standards to which clinicians, patients and the public can turn to for more education and information.”

When we are discussing policy proposals in which the cost of getting it wrong is wrongful or unnecessary death, why would we even consider moving forward without overwhelming consensus among experts?

As Dr. Sonu Gaind, former president of the Canadian Psychiatric Association told our committee:

. . . our law does not say grievous and irremediable conditions are determined by an ethical decision. It should be a scientific decision.

The government did establish an expert panel to study MAID and mental illness as a sole underlying medical condition. However, this panel was created after the passage of the sunset clause and the members were not asked to consider whether Canada was ready, whether it is possible to do this safely or whether there was scientific consensus to justify this expansion. The expert panel was tasked with presenting recommendations on implementation. The work of the expert panel should not be misconstrued as expert consensus. In fact, even the panel’s final report indicated that it would be difficult, if not impossible, to predict irremediability with mental disorders.

(1650)

This view — the inability to predict irremediability — was a concern raised by several experts. If we do not have certainty of irremediability as a safeguard in our MAID regime, what meaningful safeguards against premature death do we really have?

Dr. Mark Sinyor, a professor of psychiatry, told the joint committee:

In physician-assisted death for sole mental illness, we have no numbers at all. Neither we nor our patients would have any idea how often our judgments of irremediability are simply wrong. This is completely different from MAID applied for end-of-life situations or for progressive and incurable neurological illnesses, where clinical prediction of irremediability is based in evidence.

In the context of physician-assisted death for sole mental illness, life or death decisions will be made based on hunches and guesswork that could be wildly inaccurate. The uncertainties and potential for mistakes in mental illness are enormous and, therefore, the ethical imperative to study harms in advance of legislation is accordingly immense.

Sean Krausert, Executive Director of the Canadian Association for Suicide Prevention, pointed out that a patient’s treatment refusal does not equal irremediability, as well as that when it comes to mental illness, irremediability must remain objective. He stated:

MAID should not be provided to patients suffering from a condition that does not have reasonable foreseeability of death, unless there is clear scientific evidence that the condition is irremediable. Irremediability must always be objective and never subjective. There is no evidence that concludes that mental illness falls into this category.

Our joint committee continued its work through the fall sitting of Parliament, hearing from more witnesses on this topic, and raising more questions than answers.

Dr. John Maher, a clinical psychiatrist and medical ethicist who appeared before the committee, said:

Psychiatrists don’t know and can’t know who will get better and live decades of good life. Brain diseases are not liver diseases.

Honourable senators, the idea of a mental health patient receiving MAID when the irremediability of their illness is subjective, and open to interpretation, troubles me greatly. Canadians share this concern. According to a recent national Angus Reid poll, although Canadians agree with MAID generally, only 31% agree with MAID for irremediable mental illness. We can only imagine how much that number would drop if Canadians were asked if they would support MAID for mental illness in cases where experts disagree on the irremediability.

Concerns were also raised at committee about the inability to distinguish between suicidality and requests for MAID. It is indisputable that mental health services in Canada are grossly insufficient. According to the Centre for Addiction and Mental Health, only half of Canadians experiencing a major depressive episode receive “potentially adequate care.” One third of Canadians aged 15 or older who report having a need for mental health care say those needs have not been met. Seventy-five per cent of children with mental disorders do not have access to specialized treatment services. Aboriginal youth are about five to six times more likely to die by suicide than non-Aboriginal youth. Suicide rates for Inuit youth are among the highest in the world — at 11 times the national average.

These are very troubling statistics, and, based on the Indigenous witnesses at committee — who also expressed their deep concerns about the impact of MAID on their communities, particularly on Indigenous youth — we know that more consultations are needed, and careful attention must be given to safe and appropriate MAID expansion for Indigenous communities.

We know that one of the symptoms of many mental illnesses is the wish to die, and, yet, before the government has honoured their funding commitments to improve mental health care, they are moving forward with a policy that will offer assisted death. How can we be certain that we are providing mental health patients with a fair and honest choice? How can we be certain that feelings of suicidality associated with mental illness are not a factor in the request for MAID? As many experts told the joint committee, we cannot.

Sean Krausert noted that he likely would have chosen MAID in his “darkest days” of depression and anxiety, and now he has a rich life with successful medication and therapy. Similarly, Dr. Georgia Vrakas, a psychologist and professor, said:

In this context, giving people like me the green light to get medical assistance in dying is a clear signal of disengagement from mental illness. It sends the message that there is no hope and that we are disposable.

Colleagues, on February 2, the Honourable David Lametti, Minister of Justice, tabled Bill C-39 just weeks away from the March 17 deadline. Bill C-39 gives a one-year extension for mental illness as a sole underlying condition for MAID. But how can the government ensure that a year from now we will have the necessary answers, resources and safeguards in place to protect some of our most vulnerable people? There is no evidence to indicate that the difficulties around important issues, such as predicting irremediability and the inherent risk to vulnerable persons, will be resolved in a year.

The Liberal government has created Bill C-39 to attempt to fix the problems they created with their rushed approach to Canada’s MAID regime, but this is not an acceptable solution.

I will, reluctantly, support Bill C-39 because, without it, MAID for those with a mental illness as a sole underlying medical condition will be legal in 10 days. It is my sincere hope that this year will give parliamentarians a chance to pause and seriously reflect on the direction we are going. We would be proceeding with legislation with life-and-death consequences before we have any meaningful evidence to justify doing so. Canada is on track to be one of the jurisdictions referenced in other countries as a dangerous example.

Honourable senators, we have an opportunity to listen to the experts, and exercise the caution that this delicate issue requires. I hope many of you will join me in supporting my colleague in the House of Commons MP Ed Fast, and his private member’s bill, Bill C-314, which provides that the term “grievous and irremediable medical condition” — contained in Canada’s MAID regime — will not include mental disorders.

All policy should be based on evidence, and I cannot imagine a more crucial example than the policy around the MAID regime. I will question Minister Lametti tomorrow during Committee of the Whole on how he will ensure that the proper safeguards will be in place, and how concerns raised by experts and advocates will be fully addressed — or perhaps to re-evaluate expanding MAID if concerns remain within the year ahead.

I also look forward to working with my Conservative colleagues over the next year to put a stop to any dangerous expansion, and protect our most vulnerable Canadians.

Thank you.