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.

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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.