2. Opening Remarks

Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2

House of Commons Standing Committee on Health

Minister of Justice’s Opening Remarks

February 2024

I am pleased to be here to speak to Bill C-62, which proposes to delay the expansion of eligibility for MAID to persons whose sole underlying medical condition is a mental illness for three years, until March 17, 2024. This bill would also require that a joint parliamentary study be undertaken on the topic approximately one year before the new date of expansion.

As the Committee will be aware, the Supreme Court of Canada’s decision in Carter led to the legalization of MAID in Canada. In this decision, the Supreme Court declared the Criminal Code absolute prohibition on physician-assisted death to be unconstitutional, noting that it should be available to competent adults who clearly consent to the termination of life, and who have a grievous and irremediable medical condition. This led to Canada’s first MAID law in 2016, which restricted eligibility for MAID to persons whose natural death was reasonably foreseeable.

A few years later, the requirement that natural death be reasonably foreseeable was found to be unconstitutional by a Quebec trial court, in the Truchon decision. The federal government did not appeal this decision; instead, it made the policy decision to introduce former Bill C-7 to expand eligibility for MAID to persons whose natural death is not reasonably foreseeable. This bill, as introduced, permanently excluded persons whose sole underlying medical condition is a mental illness from being eligible for MAID. During its consideration of the bill, the Senate made an amendment to make this exclusion temporary. The House agreed, and the bill as enacted would have automatically repealed the mental illness exclusion two years later.

Now, I want to be clear that the government’s decision to go forward with both these expansions was a matter of social policy. I appreciate, though, that there are those who believe the Charter required us to act. And I want to address this point.

MAID is a complex and deeply sensitive topic, and there are important Charter-protected interests that arise in this area. On the one hand, there is the autonomy of individuals to make end of life decisions. And on the other is the protection of those who are vulnerable and might be at risk in a permissive regime.

In its decision in Carter, the Supreme Court recognized the complexity of legislating in this area and suggested that Parliament’s choices on how to balance these competing interests would be given a high degree of deference.

MAID is particularly complex in the context of mental illness. As noted in the various MAID-related Charter statements, these inherent complexities are the basis for the mental illness exclusion. Some of these complexities include that the course a mental illness may take is more difficult to predict than that of a physical illness, and many people with a poor prognosis will improve, at least in terms of their suffering and their wish to die. Moreover, distinguishing between suicidality and a valid request for MAID becomes particularly challenging when suicidality may be a symptom of the mental illness that led the person to request MAID in the first place.

The MAID mental illness exclusion is not based on harmful assumptions and stereotypes about mental illness. We recognize that the suffering that mental illness can cause is on par with the suffering that physical illness can cause. The exclusion is not a denial of this fact.

Parliament decided that this expansion should go forward and our government supports this. However, this is not in our view Charter-mandated. As we have said, though, we do believe the exclusion should be lifted when the health care system is ready to manage the inherent risks and complexities of assessing requests for MAID that are based on a mental illness alone. Our provincial and territorial partners agree and so this bill reflects the prudence required in this complex area.

Thank you.