2. Opening Remarks

House of Commons

Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying)

Standing Committee on Justice and Human Rights

Opening Remarks

Minister of Justice

February 14, 2023

Thank you Mr. Chair for the opportunity to speak with the Committee on Bill C-39 and for the urgency you have shown to consider this important legislation.

Former Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), expanded medical assistance in dying (or MAID) eligibility to persons whose natural death is not reasonably foreseeable in March 2021. It also temporarily excluded a mental illness from grounding a request for MAID. In other words, it excluded from eligibility for MAID circumstances where the only medical condition identified in support of the request for MAID is a mental illness. In the absence of legislative change, this exclusion will automatically be repealed on March 17, 2023, at which point MAID in these circumstances will become lawful. Bill C-39 proposes to extend the mental illness exclusion for one year, until March 17, 2024.

The main objective of this Bill is to facilitate the safe assessment and provision of MAID in all circumstances where a mental illness forms the only basis of a request for MAID. An extension of the exclusion of MAID eligibility in these circumstances would ensure healthcare system readiness by, among other things, allowing more time for the dissemination and uptake of key resources by the medical and nursing communities. It would also give the federal government more time to meaningfully consider the report of the Special Joint Committee on MAID (or AMAD), which is expected on February 17, 2023. I am confident that one year strikes the right balance in that it recognizes the importance of proceeding as quickly as possible, on the one hand, and doing so in a measured and prudent way to make sure that we get this right, on the other.

As always, the federal government remains committed to ensuring that our laws reflect Canadians’ evolving needs, protect those who may be vulnerable, and support autonomy and freedom of choice.

As I just explained, former Bill C-7 temporarily excluded access to MAID on the basis of a mental illness alone. The reason for this temporary exclusion of eligibility was the recognition that requests for MAID in these circumstances are complex and required additional study.

During this time, the Expert Panel on MAID and Mental Illness conducted an independent review on recommended protocols, guidance and safeguards for circumstances where a mental illness forms the sole basis of a request for MAID. The Expert Panel’s final report was tabled in Parliament on May 13, 2022. Notably, the Panel found that its recommendations could be fulfilled without adding new legislative safeguards to the Criminal Code. It found that the existing MAID eligibility criteria and safeguards buttressed by existing laws, standards, and practices in related areas of healthcare can provide an adequate structure for the provision of MAID to persons with mental disorders so long as they are interpreted appropriately and take into consideration the specificity of mental disorders.

The Special Joint Committee on MAID also completed its statutory review of the Criminal Code MAID provisions and their application, as well as other related issues, including mental illness. In June 2022, the Committee issued an Interim Report on MAID and mental illness as the sole underlying medical condition in which it summarized the testimony of witnesses who presented to the Committee. These witnesses included psychiatrists and other physicians, as well as individuals living with mental illness, and representatives from organizations representing persons living with mental illness. We are eagerly awaiting the Committee’s final report, which is expected on February 17, 2023, this Friday.

I want to be abundantly clear that the original period of ineligibility and this proposed extension are not based on the harmful and incorrect assumption that individuals with mental illness lack decision-making capacity nor on a failure to appreciate the severity of the suffering that can be caused by mental illness. The assessment and provision of MAID in circumstances where a mental illness grounds the request for MAID raise particular complexities, including difficulties with assessing whether the mental illness is in fact irremediable, and the potential impact of suicidal ideation on such requests.

We recognize that mental illness can cause the same level of suffering that physical illness does. We are aware that there are persons who have been waiting to become eligible to receive MAID in March 2023. We recognize that these persons will be disappointed by an extension of ineligibility, and we sympathize with these individuals. I want to emphasize that I believe this extension is necessary to ensure the safe provision of MAID in all cases where a mental illness forms the basis of the request for MAID. We need this extension to ensure that we do not rush the expansion of eligibility, and that we make any changes in a prudent and measured way. Our main priority is to ensure the safe provision of MAID, and I am confident that courts would find this extension to be constitutional.

I want to reiterate that we need more time before eligibility is expanded – more time to ensure healthcare system readiness, and more time to meaningfully consider, and potentially act on, the Special Joint Committee on MAID’s recommendations.

Thank you and I look forward to your questions.