3. Questions and Answers

• Table of Contents

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

• Q 1 Why is the MAID mental illness exclusion being extended?
• Q 2 The Special Joint Committee on MAID and the provinces and territories have asked for an indefinite pause on the expansion. Why is the government proposing a three-year extension?
• Q 3 Is the government just punting this to the next election?
• Q 4 What happens if Bill C-62 is not enacted before March 17^th, 2024 (i.e., before the mental illness exclusion is set to expire)?
• Q 5 If Bill C-62 is not enacted before March 17^th, 2024, is the federal government going to allow MAID to become available on the basis of a mental illness alone before the healthcare system is ready?
• Q 6 Is Bill C-62 re-opening the debate of whether MAID eligibility should be expanded to persons whose sole underlying medical condition is a mental illness?
• Q 7 Does the Charter not require MAID to be available on the basis of a mental illness alone? Isn’t this bill unconstitutional?
• Q 8 Doesn’t the exclusion of eligibility perpetuate the stereotype that people with mental illness lack decision-making capacity?
• Q 9 In Carter, the Court held that prohibiting MAID for capable adults suffering from grievous illnesses is unconstitutional. How is the bill consistent with Carter?
• Q 10 The argument that Carter does not require permitting MAID for mental illness has already been rejected by the Alberta Court of Appeal in the E.F. case. What do you say to that?
• Q 11 In Truchon, the court rejected Canada’s arguments and evidence on the risks of permitting MAID for mental illness. Doesn’t Truchon require the expansion of eligibility?
• Q 12 In G, the Supreme Court held that a blanket exclusion – with no room for individualized assessment – was discriminatory. Doesn’t this mean that the blanket exclusion of eligibility for MAID is discriminatory?
• Q 13 How can the lack of provincial and territorial readiness justify limiting the Charter right to MAID?
• Q 14 Would permitting MAID when the healthcare system isn’t ready violate the Charter?
• Q 15 Some Senators have called on the government to initiate a reference to the Supreme Court of Canada. Is the government considering this?

Q 1 Why is the MAID mental illness exclusion being extended?

• Medical assistance in dying (MAID) is a complex and deeply sensitive topic.
• I recognize that mental illness can cause the same level of suffering as physical illness, and I believe that MAID should be an option that is available to alleviate enduring and intolerable suffering that is caused by a mental illness.
• However, given that this is a matter of life and death, we cannot rush this expansion. We must take the time to get it right.
• Through this extension we hope to balance competing interests – on the one hand, supporting the autonomy and freedom of choice of individuals to make end of life decisions, and on the other, protecting those who may be vulnerable.
• The provinces and territories are responsible for the implementation of our MAID framework, and they have asked for more time to prepare their health cares systems for the safe assessment and provision of MAID in these circumstances. This is why we are proposing to extend the exclusion.

Q 2 The Special Joint Committee on MAID and the provinces and territories have asked for an indefinite pause on the expansion. Why is the government proposing a three-year extension?

• We have been clear that the government supports this expansion, and therefore the question is not a matter of if the expansion will take place, but when it will take place.
• Three years is the amount of time that we have determined is appropriate to respond to what the provinces and territories have said about needing more time to get their health care systems ready.
• Minister Holland has spoken with his provincial counterparts, and they all support this length of time.

Q 3 Is the government just punting this to the next election?

• This timeline is not tied to the election – it is the amount of time that we have determined is appropriate to respond to what the provinces and territories have said about needing more time to get their health care systems ready.
• Additionally, this extension would not change the operation of the sunset mechanism. The mental illness exclusion would be automatically repealed on March 17, 2027, at which point eligibility for MAID would be expanded to those whose sole underlying medical condition is a mental illness.
• The only way to stop the repeal would be to introduce new legislation and get it passed by Parliament before that date.

Q 4 What happens if Bill C-62 is not enacted before March 17^th, 2024 (i.e., before the mental illness exclusion is set to expire)?

• If the bill is not in force on or before March 17, 2024, then the Criminal Code mental illness exclusion would be repealed and the provision of MAID on the basis of a mental illness alone would become lawful.
• It would become lawful under the existing Criminal Code eligibility criteria (subsection 241.2(1)) and safeguards for MAID requests where death is not reasonably foreseeable (subsection 241.2(3.1)).
• Of course, it would remain open to the provinces and territories to determine whether to allow MAID in these circumstances under their responsibility over health care.
• If Bill C-62 is passed at a later date, the provision of MAID on the basis of a mental illness alone will be prohibited again until March 17, 2027.

Q 5 If Bill C-62 is not enacted before March 17^th, 2024, is the federal government going to allow MAID to become available on the basis of a mental illness alone before the healthcare system is ready?

• The law is clear that absent Bill C-62 coming into force prior to March 17th, the provision of MAID on the basis of a mental illness alone would be permitted under federal criminal law.
• Provinces and territories have the authority to determine how lawful medical services are provided in their jurisdictions. As such, if they feel that they are not ready to safely provide MAID in these circumstances, they may choose not to permit it until they are.

Q 6 Is Bill C-62 re-opening the debate of whether MAID eligibility should be expanded to persons whose sole underlying medical condition is a mental illness?

• Bill C-62 contains a parliamentary review clause that requires that a comprehensive review relating to the eligibility of persons whose sole underlying medical condition is a mental illness be undertaken by a joint parliamentary committee.
• This review may serve to examine the progress made by the provinces and territories in achieving overall health care system readiness. It may also serve to further study whether additional Criminal Code amendments are needed.
• The review clause does not impact the operation of the sunset mechanism – If Bill C-62 is enacted, the Criminal Code mental illness exclusion will be automatically repealed on March 17, 2027. The only way to stop this from happening would be through the introduction and passing of new legislation through Parliament before that date.
• Bill C-62 does not propose to walk back the eventual expansion; it merely proposes to extend the period of ineligibility for three years so that the expansion is done in a prudent and measured manner, when the health care systems are ready.

Q 7 Does the Charter not require MAID to be available on the basis of a mental illness alone? Isn’t this bill unconstitutional?

• While there are diverging views on this issue, I do not believe that the Charter requires that MAID be available for persons whose sole underlying medical condition is a mental illness.
• This is a highly complex issue on which there are competing Charter-protected interests on either side. Our law must balance autonomy and freedom of choice on the one hand, and the protection of those who are vulnerable and may be at risk in a permissive regime on the other.
• In its decision in Carter, the Supreme Court of Canada recognized the complexity of legislating in this area and has suggested that Parliament’s choices on how to balance these competing interests would be given a high degree of deference.
• That being said, as a matter of social policy, I believe that MAID should be an available option for these individuals, as I know that the suffering caused by mental illness can be equivalent to that caused by physical illness.
• However, eligibility should not be expanded before our health care systems are ready; we should not expand access until we can do so safely.

Q 8 Doesn’t the exclusion of eligibility perpetuate the stereotype that people with mental illness lack decision-making capacity?

• The federal government has been very clear that the exclusion of eligibility is not based on discriminatory assumptions that people suffering from mental illness lack decision-making capacity.
• We recognize that people with mental illnesses generally do have capacity, but we are also alive to the evidence about the challenges in accurately assessing capacity and consent in circumstances where the wish to die can be a symptom of the mental illness itself.

Q 9 In Carter, the Court held that prohibiting MAID for capable adults suffering from grievous illnesses is unconstitutional. How is the bill consistent with Carter?

• In Carter, the Court’s analysis was focused on the factual circumstances of Gloria Taylor, whom the Court characterized as the “impetus” for the case. Gloria Taylor had an advanced physical illness – the fatal neurodegenerative disease of ALS.
• Although the declaration of invalidity the Court ordered in Carter does not expressly exclude MAID on the basis of mental illness, the Court clearly stated that the declaration was intended to respond to the factual circumstances in that case (para. 127).
• The Court also expressly stated that MAID for psychiatric disorders would not fall within the parameters suggested in its reasons (para. 111).
• I firmly believe that Carter does not answer the difficult question of whether to permit MAID on the basis of mental illness nor does it displace Parliament’s role in determining how to balance the competing rights and interests in this context.

Q 10 The argument that Carter does not require permitting MAID for mental illness has already been rejected by the Alberta Court of Appeal in the E.F. case. What do you say to that?

• The issue before the Court of Appeal in E.F. was a narrow one. The issue was whether the applicant, who suffered from functional neurological disorder, also known as conversion disorder, was eligible to receive MAID under the temporary process that the Supreme Court of Canada granted in the second Carter decision.
• The Court of Appeal expressly stated that it was not making any determination regarding the legislative response to Carter, which was still being considered by Parliament, and it rightly acknowledged that constitutional review of any new legislation would have to wait until it was enacted (para. 72).
• The constitutionality of Canada’s MAID law will not be determined by a simple comparison to the Carter judgment. Rather, it will involve an assessment of the law’s effects in light of its distinct objectives, based on the legislative record and available evidence.
• I firmly believe that the Charter permits more than one answer to the difficult question of how to balance the competing rights in this context, and that the exclusion of eligibility is constitutional.

Q 11 In Truchon, the court rejected Canada’s arguments and evidence on the risks of permitting MAID for mental illness. Doesn’t Truchon require the expansion of eligibility?

• The Truchon case was brought by two individuals who were seeking MAID on the basis of a physical illness.
• Although there was evidence before the court on the issue of MAID where mental illness is the sole underlying medical condition, the trial judge held that that evidence was of “doubtful relevance” to the case before her, given that neither of the plaintiffs before her was seeking MAID on the basis of a mental illness.
• To the extent that the court made findings in relation to that evidence, those findings would not be binding on a subsequent court considering the constitutionality of the new law.
• A court assessing the constitutionality of the exclusion of eligibility would be required to come to its own conclusions based on the objectives and provisions of the new law, and on the evidentiary record before it.

Q 12 In G, the Supreme Court held that a blanket exclusion – with no room for individualized assessment – was discriminatory. Doesn’t this mean that the blanket exclusion of eligibility for MAID is discriminatory?

• G was a case about the sex offender registration rules, which treated individuals who had been found not criminally responsible (or NCR) by reason of mental disorder more harshly than individuals who had been convicted of the same conduct.
• Individuals who had been convicted had access to “exit ramps” from the registries, based on an individualized assessment, that were not available to individuals who had been found NCR.
• The Court held that this was discriminatory because the harsher treatment of NCR accused was not based on any evidence that they were more likely to reoffend, and fostered harmful stereotypes that people found NCR are inherently and perpetually dangerous.
• G does not stand for a broad proposition that blanket rules are never permissible under section 15 of the Charter.
• The exclusion of eligibility for MAID is not like the law that was at issue in G. As set out in the Charter Statement for the bill, it is not based on harmful stereotypes, which can be markers of discrimination, but on evidence about the inherent risks and complexities of permitting MAID in these circumstances.
• I believe that eligibility for MAID should be extended, and our Government has committed to doing so once it can be done safely, but I do not believe that this is the only path available to us under the Charter.

Q 13 How can the lack of provincial and territorial readiness justify limiting the Charter right to MAID?

• I believe that the Charter neither requires nor precludes the expansion of eligibility. In other words, I believe that both permitting and prohibiting MAID for mental illness are reasonable alternatives that are open to the federal government under the Charter.
• Our Government has committed to the expansion of eligibility because we believe that is the right thing to do, when it can be done safely.
• But to be clear, we do not believe that the Charter requires us to take this step and we are not relying on the lack of readiness as a justification for limiting Charter rights.

Q 14 Would permitting MAID when the healthcare system isn’t ready violate the Charter?

• As set out in the Charter Statement for this bill, the availability of MAID, in the absence of adequate safeguards to prevent abuses and errors, has the potential to engage the Charter rights of individuals who may be at risk in such a system.
• I believe that the safeguards set out in the Criminal Code are responsible and appropriate, and that the planned expansion of eligibility in three years’ time is consistent with the Charter.

Q 15 Some Senators have called on the government to initiate a reference to the Supreme Court of Canada. Is the government considering this?

• The Supreme Court Act allows the Governor in Council (which in practice means Cabinet) to refer certain questions for a hearing and consideration to the Supreme Court of Canada. This can include, for example, questions concerning the constitutionality of legislation.
• I have reviewed Bill C-62 and am confident that it is consistent with the Charter.
• For this reason, our government has no plans to initiate a reference at this time.

• Table of Contents