House of Commons Standing Committee on Justice and Human Rights – Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Opening Remarks

Senate

Bill C-7,
An Act to amend the Criminal Code
(medical assistance in dying)

Standing Committee on Legal and Constitutional Affairs

Opening Remarks for the Minister of Justice – 20 minutes

February 2021

Thank you very much, Madam Chair, for the invitation to appear before you today to discuss Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). I would like to acknowledge the significant amount of work that this Committee has already done in its pre-study of Bill C-7, by hearing from over 80 witnesses, considering even more written briefs, and producing a thorough report that outlines many of the challenges and complexities of the issue.

I will focus my remarks on two issues that have featured prominently in the pre-study of Bill C-7, and in second reading debates in the Chamber. The issues flow from the proposal to repeal the MAID eligibility criterion requiring a reasonably foreseeable natural death. The first is the concerns of some disabled individuals and many organizations who represent their rights and interests about the potential negative impacts of the legislation on persons living with disabilities. The second is the exclusion from MAID eligibility of persons whose sole medical condition is a mental illness.

For some individuals living with a disability and for numerous organizations who represent such persons, there is a concern that eligibility without the requirement for a reasonably foreseeable death singles them out as persons whose death can appropriately be facilitated, since a person with a disability could be eligible for MAID, but a person who does not have a disability, an illness or a disease, and who is not in an advanced state of decline in capability, could not be eligible for MAID, no matter how much they may be suffering. This is viewed as a source of discrimination and stigmatization. Put simply, it is feared that disability itself would become a justification to end life. It is also feared that an assisted death would be easier to access than the care needed to live with dignity, and that some will choose death when they would rather go on living.

However, for other individuals living with disabilities whose natural death is not reasonably foreseeable, the requirement of a reasonably foreseeable natural death was seen as a direct violation of their autonomy, and deprived them of access to their preferred means of relieving intolerable suffering. The Superior Court of Québec also found this to be the case. Let me be very clear: the Government of Canada absolutely believes that all lives are of equal and inherent value, and that having a disability is not a justification to end life. We are also mindful that intolerable suffering, some of which tragically cannot be sufficiently alleviated despite best efforts or for which there are treatments the person is not willing to undertake, can exist throughout one’s life. Bill C-7 is grounded in the objective of giving autonomy to Canadians to relieve intolerable suffering associated with a medical condition when they decide that they can no longer go on. We believe Canadians are best placed to make that determination for themselves.

Despite the challenges that reconciling autonomy, affirming the value of all lives and protecting vulnerable individuals poses, I firmly believe that the remaining eligibility criteria and the proposed new safeguards for persons whose death is not reasonably foreseeable provide effective protection against these concerns.

To be eligible for MAID, Canadians would still need to have decision-making capacity, make a voluntary request that was not the result of external pressure, and give informed consent to receive MAID. These elements protect the fundamental value of individual autonomy that is at the core of the MAID policy.

Because expanding eligibility to those who are not approaching death is a fundamental shift in this country’s policy on medical assistance in dying, the Bill before you proposes a new set of enhanced safeguards specifically tailored to persons whose death is not reasonably foreseeable, where the risks are greater.

First, the Bill would require an assessment period that must last a minimum of 90 days. It has been suggested that three months is too long for some, and not long enough for others. We have heard on a number of occasions that it can take over a year for a person to adapt to the onset of a new disability, for example following a catastrophic injury, such that three months seems much too short. This safeguard requires a minimum 90-day period to assess a person’s eligibility for MAID; it is not a waiting period for the person requesting MAID after having been approved, nor is it a mandatory minimum period for which the person must live with their medical condition before seeking MAID. Again, it is a minimum amount of time that the practitioners have to devote to the assessment of a person’s eligibility.

The 90-day assessment period provides a reasonable minimum timeframe, taking into account the diversity of cases that practitioners may encounter. It is not meant to address any specific type of situation. We must remember that the measures proposed in Bill C-7, and indeed Parliament’s jurisdiction in this area, are matters of criminal law. As criminal law, these measures must set down a general framework of minimum standards for all MAID cases, and not a series of specific rules that depend on the particular features of different types of medical conditions, or unfettered discretion of individual practitioners.

Another new safeguard proposed in Bill C-7 is the requirement for input from an expert into the assessment. As introduced, the Bill would have required one of the two assessors to have expertise in the condition that is causing the person’s suffering. Witnesses who appeared before the House of Commons Standing Committee on Justice and Human Rights indicated that while experts are willing to provide input about their field of expertise when asked, they rarely conduct full MAID assessments themselves. The Justice Committee adopted an amendment that would require the assessing practitioners to consult with a practitioner who has expertise in the person’s condition, if neither of them has that expertise.

The Government supported that amendment as it makes sense from the point of view or practitioners, removes potential barriers to access, and it still achieves the protective objective of including the knowledge and expertise of a practitioner who has experience with the condition causing the person’s suffering in the eligibility assessment. In the Government’s view, it is an essential step to make sure that all possible and reasonable avenues to relieve suffering are known before ending the life of a person whose natural death is not yet reasonably foreseeable.

Practitioner expertise will also help fulfill two other safeguards that target truly informed consent. These are, first, that the person be informed of means available to relieve their suffering and be offered consultations with professionals who offer relevant services and care, and second that the two assessors discuss such alternatives with the person and are confident that the person has seriously considered those means. To be clear, there is no requirement that the person actually try any treatment or service that could alleviate their suffering. The Government is of the view that requiring a person to have tried all reasonable treatments would go too far and would be inconsistent with the fundamental principle of autonomy. However, we do think it is critical that the person be informed of all reasonable treatments that are available, and that the practitioners be satisfied that the person has given serious thought to these alternative ways of relieving suffering before their life is ended. This is consistent with one of the objectives of this Bill, which is to alleviate the suffering of Canadians.

MAID is an incredibly serious action with irreversible consequences, and its gravity is only amplified where the life that is ended could have gone on for decades yet. We must do more as a society to support those in our community who are suffering from a variety of complex, and often intersecting reasons. MAID is meant to be an exceptional avenue when nothing else is satisfactory to alleviate suffering. As a matter of criminal law, we must acknowledge there are challenges that cannot be resolved through Bill C-7, for example guaranteeing access to health care or social services.

However, the proposed safeguards achieve a fair balance: they do not create obstacles to access for those who are steadfast in choosing MAID, but they will help ensure that no one obtains MAID without adequate time and attention paid to vulnerabilities and alternative options specific to their individual medical circumstances.

This brings me to discuss the other aspect I would like to address, which is the exclusion of mental illness as a sole underlying medical condition.

I should note at the outset that it is not my role as Minister of Justice and Attorney General to give legal advice to Parliamentary committees, which, of course, have access to their own legal counsel and independent witnesses. As you know, however, I do have obligations under the Department of Justice Act in terms of reviewing proposed government bills for inconsistency with the Charter and preparing Charter Statements for Government bills. Charter Statements are not legal opinions. Rather, they provide legal information to the public and Parliament about a bill’s potential effects on Charter rights as well as the considerations that support the bill’s consistency with the Charter.

In keeping with my obligations under the Department of Justice Act, I tabled a Charter Statement for Bill C-7 on October 21. The Statement addresses the exclusion of eligibility for MAID where mental illness is the sole underlying medical condition.

The wisdom and constitutionality of this aspect of Bill C-7 have, as you know, been a subject of considerable debate both within Parliament and in the public domain. It is in this context that I propose to go through the considerations set out in the Charter Statement on this issue, and to provide a little more information about the reasons why eligibility for MAID has been limited in this way.

As the Charter Statement indicates, the exclusion of eligibility for MAID where mental illness is the sole medical condition engages the equality guarantee under section 15 and potentially engages the rights to liberty and security of the person under section 7.

Before I turn to the rationale for the exclusion, it is important to note that the constitutional considerations associated with MAID for persons suffering solely from mental illness have not been conclusively addressed by the courts. In Carter, the Supreme Court of Canada stated that MAID for “persons with psychiatric disorders” did not “fall within the parameters” of its reasons. Similarly, in the Truchon case in Quebec, the Court expressly noted that the evidence on MAID where mental illness is the sole underlying condition was of “doubtful relevance” because both of the plaintiffs were seeking MAID because of a physical illness.

Turning now to the rationale for the exclusion, it may be useful to begin by describing what the exclusion is not based on.

Contrary to what some have argued, it is not based on an assumption that individuals who suffer from mental illness lack decision-making capacity. This is evident in the fact that mental illness would not disqualify an individual from eligibility for MAID if they otherwise meet the requirements.

Similarly, the exclusion is not based on the view that mental illness does not produce profound or serious suffering, or that it is less worthy of concern than physical illness.

What the exclusion is based on, put simply, is a concern about the unique and serious risks that MAID poses in situations where the sole underlying condition is a mental illness.

Following the legalization of MAID, the Government asked the Canadian Council of Academies (CCA) to conduct independent, evidence-based reviews on three potential areas of expansion for Canada’s MAID regime, including mental illness as the sole underlying medical condition. The CCA report on mental illness reflects the deeply divided opinion and evidence in this area.

Although the report does not come to a consensus view on the issue, it includes evidence and expert opinion to the effect that relaxing the prohibition on MAID in these circumstances would pose untenable risks, compromising the objective of protecting vulnerable persons.

I would like to touch on three areas of particular concern from the CCA report, all of which are also referenced in the Charter Statement. The first relates to the evidence on the challenges associated with screening for decision-making capacity in this context.

While most people with mental illness have the capacity to make treatment decisions, some mental disorders can impair decision-making and increase the risk of incapacity. There is evidence that screening for decision-making capacity is particularly difficult, and subject to a high degree of error, in relation to persons who suffer from a mental illness serious enough to ground a request for MAID. This is because hopelessness, feelings of worthlessness, and the wish to die are common symptoms of some mental illnesses. It can be difficult, even for experienced practitioners, to distinguish between a wish to die that is autonomous and well considered and one that is a symptom of the person’s illness.

The second area of concern relates to the evidence on the nature and trajectory of mental illness. There is evidence that mental illness is generally less predictable than physical illness in terms of the course it will take over time. Many people with a poor prognosis will improve, at least in terms of their suffering and associated wish to die. Although some will not improve, there is no reliable way of identifying these patients in advance.

The third area of concern relates to international evidence from the few jurisdictions that permit MAID for people whose sole medical condition is a mental illness – Belgium, Netherlands and Luxembourg. Recent practice in those countries has raised concerns, both in relation to the increasing numbers of these cases and in relation to the wide range of mental illnesses in respect of which MAID has been provided.

Based on the evidence available at this time, it is not clear that anything short of the proposed exclusion would mitigate the significant risks and sufficiently protect vulnerable individuals who seek MAID on the basis of mental illness.

For these reasons, it is my view that prohibiting MAID for persons suffering solely from mental illness is an option that is open to the Government, consistent with the Charter.

There will be an opportunity to carefully examine this question, and to consider new or emerging evidence, during the parliamentary review of the MAID legislation.

I believe that the most prudent approach at this time, however, is to enact a clear exclusion, and to commit to further reflect on the issue through the parliamentary review.

Thank you, Madam Chair. I look forward to your questions.