Bill C-62

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

This enactment amends An Act to amend the Criminal Code (medical assistance in dying) to provide that persons are not eligible, until March 17, 2027, to receive medical assistance in dying if their sole underlying medical condition is a mental illness.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Thank you, Mr. Chair.

Thank you to our guests for being here.

Dr. Gagnon and Dr. Gaind, you said some things that are resonating with me. Last night, in my intervention on Bill C-62, I shared for the first time something that I had not shared previously. While I have spent every minute of being elected for the last eight and a half years fighting for mental health supports for our frontline personnel, whether it's those who are struggling with PTSD or OSI, and I've been fighting tooth and nail for the country to adopt a national, three-digit suicide hotline, there was a time in my life when I struggled. The thoughts of death consumed my whole being. I attempted suicide twice. I'm living proof today that life is worth fighting for.

When I speak about fighting for those who don't have a voice and about my concerns about what Ms. Long is saying, I don't believe there are enough safeguards we can put in place to ensure that somebody who, like I was, is in a dark spot and finds a permanent solution for a temporary problem....

I appreciate your comments and all of your testimonies. I can respect all of the testimonies. My worry is that there will be many people, if we expand this to those who are struggling with mental illness, who say that they want to die, but they don't want to be dead. It's such a final act.

I also have a loved one who has recently chosen MAID. While we hear about the safeguards that are in place—a cooling off period and what have you—I also know that if that loved one of ours wanted it right away, they could get that.

My worry is for those who are struggling with mental illness and want to die because of whatever situation they're in. If only we can provide hope for the helpless and care instead of despair, I think we can really make a difference.

I thank you for your testimony.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

Dr. Gaind, every problem we've had with this particular issue of mental disorder as the sole underlying medical condition you can trace all the way back to that eleventh-hour Senate amendment to Bill C-7. I was here during the 43rd Parliament. I was here in the 42nd Parliament for the first debate on MAID. I remember when the charter statement was first issued for Bill C-7, which I think reasonably explained the government's original position for excluding mental disorders as qualifying for MAID. They recognized the inherent risks and complexities that would be present for individuals. They noted that the evidence suggests that screening for decision-making capacity is particularly difficult. They noted that mental illness is generally less predictable than physical illness. However, inexplicably they accepted a very consequential Senate amendment.

It seems that we've just been constantly kicking the can down the road. The first delay was for two years. Bill C-39 delayed it by a further year. Here we now are, with Bill C-62, looking at another three years.

I'm just wondering, first of all, what your reaction was at the time when the government did that 180° turn in their decision. Also, I think you sort of answered this, but I'd like you to expand on it a bit more. Can we actually ever be ready for this, or are we just setting ourselves up for failure in 2027?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you very much, Mr. Chair.

Thank you to all of our witnesses for helping to guide us through this part of the study of Bill C-62.

I've been a member of the Special Joint Committee on Medical Assistance in Dying from the beginning, and I'm very familiar with the subject matter that's before us.

Ms. Long, I'd like to start with you, if I could.

Thank you for your opening statement and for representing Dying with Dignity. Of course, ever since our special joint committee tabled the report in the House of Commons and in the Senate with our single recommendation, we are also in receipt of a letter that was signed by the health ministers from seven out of 10 provinces and all three territories.

If you look at that letter, you can quote from the middle of it, where it says, “The current March 17, 2024, deadline does not provide sufficient time to fully and appropriately prepare all provinces and territories across Canada”. Further down, they ask the Minister of Health and the Minister of Justice to “indefinitely pause the implementation of the expanded MAID eligibility criteria to enable further collaboration between provinces, territories and the federal government”.

Ms. Long, when I look at the signatories, I see that they include ministers of health and ministers responsible for mental health and addictions. You can see that they are widely across the political spectrum. They include the NDP government in British Columbia and several Conservative governments in other provinces.

I want to know from you how Dying with Dignity responds to this letter, given that these are all cabinet ministers, they have executive-level functions within their respective governments and they are responsible for the systems of health that are actually going to be overseeing this process. If they are publicly asserting that their systems are not ready, how do you respond to that with your opening statement where you said that we are ready?

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

Dr. L'Espérance, the committee tabled its first report in February 2023. We had to look at all the possible scenarios for expanding the eligibility criteria for medical assistance in dying, and the committee made a strong majority recommendation in favour of advance requests. It may have been a good idea for the government to wait to see what could be done for people with mental disorders, but, at the last minute, it decided not to include this recommendation in Bill C‑62, whereas it included, word for word, the recommendation of the Expert Panel on Medical Assistance in Dying and Mental Illness.

Did that surprise you? How do you explain that?

Could you shed some light on how advance requests work in Quebec, so that people understand what it is all about?

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Mr. Chair.

First of all, I'm going to make a comment about our two psychiatrists.

It seems to me, from what they have told us this evening, that they are of the same opinion. They are testifying as individuals to tell us that they are at odds with the Canadian Psychiatric Association, the Canadian Bar Association, the Association des médecins psychiatres du Québec, the Federation of Medical Regulatory Authorities of Canada, the Canadian Association of MAiD Assessors and Providers—we have a lot of comments on that—and the Collège des médecins du Québec.

According to Dr. Gaind, the members of these organizations are ideologically motivated activists. We used to see that in the former Soviet Union, where science was pitted against ideology. When someone disagreed with the other person's opinion, they accused the other person of basing their position on ideology. It's called “scientism.” That said, this is not the place for an epistemological debate.

The fact remains that I am interested in Bill C‑62, but I haven't heard anything on the bill, which contains a very important provision. Do you believe that we should postpone the provision indefinitely? Do you agree with the three-year period? I would just like to know what you think.

Dr. Gagnon, you have the floor.

[Brendan Hanley, Liberal, Yukon, YT]

Thank you very much.

I want to echo Dr. Ellis in thanking the witnesses for gathering, not just on Valentine's Day but in the evening and on short notice, and being able to provide us with this really useful testimony.

Obviously, there have been years of deliberation on this, including the recent committee meetings. I'm trying to put my questions into a framework of “what now?” What do we do after Bill C-62 in terms of next steps? How do we best prepare?

I'd like to start with Dr. L'Espérance. I want to understand more about what we can learn from the experience of Quebec and how you see the direction in Quebec, particularly for MAID eligibility for mental illness. I understand from Bill 11 that this is a permanent exclusion. Is there anything we can learn as a country from the deliberations of Quebec?

Where do you see Quebec's health system in terms of readiness for mental illness as a sole underlying medical condition? How do you reconcile that with the direction of the legislation in Quebec?

[Helen Long, Chief Executive Officer, Dying with Dignity Canada]

Thank you very much for having me.

Good evening, members of the committee.

I appreciate this opportunity to testify on a matter of profound concern to the people across the country who are afflicted with severe, treatment-resistant mental disorders. I'm drawing upon a submission we made to the special joint committee in November 2023.

This is an issue that concerns us deeply at Dying with Dignity Canada because it speaks to the rights of persons who have both historically and presently been deprived of section 7 and 15 charter rights to make autonomous and lawful decisions concerning their end-of-life choices simply because their illness is psychiatric in nature and not physical.

The bill before you would extend the denial of access to MAID assessment for those whose sole underlying condition is a mental disorder for a further three years, until March 2027.

Given that Bill C-7, which brought in the right to a MAID assessment for those whose death was not imminently foreseeable, passed in 2021 with a sunset clause excluding that access for those with a mental disorder for two years, which was extended for a further year, means that persons in this category will have been denied for six years the same set of MAID entitlements as those with a physical illness.

It is outrageous to suggest that the development of a regime for MAID MDSUMC needs six years. It is especially egregious given that all of the metrics the government set for readiness in its last delay have been met. We have a nationally accredited curriculum and willing, competent assessment providers. We have practice standards against which regulators of physicians and nurse practitioners can oversee that conduct.

No new metrics are set in Bill C-62. What more is left to do? We need to look to those who are doing the work of providing MAID assessments and provisions; the regulatory bodies charged with the oversight of clinicians' conduct; the 127 physicians and nurse practitioners across this country who have confirmed in writing that the MAID system, MAID assessors and providers and psychiatrists who wish to be involved in MAID MDSUMC and who have testified that they are ready; the regulatory authorities; and, most importantly, patients with severe, treatment-refractory conditions who are ready for MAID MDSUMC.

No new metrics have been established for this delay. Adequate safeguards are in place, including the requirement for a minimum 90-day assessment period, the need to consult with an individual with expertise, a psychiatrist in these cases, and so forth.

We endorse the coming into force of MDSUMC because we have a duty to safeguard the rights of all Canadians. In this case, it's a small group of people tragically afflicted with acute, treatment-resistant mental disorders who, despite many interventions over long periods of time, have experienced unremitting suffering in their lives that cannot be relieved.

At DWDC, we hear from those who, for reasons of fear, embarrassment or stigma, are reluctant to speak publicly about their afflictions but who know only too well what deep, unrelenting suffering means. Even more regrettably, we hear from those who will not speak publicly for fear of being ostracized by their own communities. Often their voices are drowned out by those purporting to speak for them.

You're likely all familiar with the story of John Scully, who has spoken publicly for several years about his mental disorder, but I also hear from Jane and Cathy and others who are not able to speak publicly.

Canada regrettably has a long history of paternalism and arbitrary denial of rights for those with mental disorders, and we have often unfairly conflated mental illness with a lack of capacity. In Starson v. Swayze, the Supreme Court of Canada, discussing the need to redress decades of unfair presumption of incapacity in relation to the mentally ill, wrote, “For this reason it is particularly important that autonomy and self determination be given priority when assessing individuals in this group.”

Every year we hear from thousands of people across Canada who are seeking information or navigating the MAID coordination program across the country. Since Bill C-7 passed, the proportion of these individuals who identify as having a mental disorder as either a sole underlying medical condition or a comorbidity continues to rise.

We anticipate that many of these individuals will likely never be found eligible for MAID MDSUMC, but we cannot continue to deny them the right to apply. Doing so only serves to create further distress and angst. They have been left in an untenable position, unable to apply and suffering grievously.

[Dr. Georges L'Espérance, President, Association québécoise pour le droit de mourir dans la dignité]

Thank you, Mr. Chair and members of the Standing Committee on Health.

The Association québécoise pour le droit de mourir dans la dignité is grateful for the invitation.

I'm a retired neurosurgeon, an active MAID provider and president of the association.

With respect to Bill C‑62, I will focus on a few main points on the new delay in accessing medical assistance in dying for people with mental illness, and then speak about advance requests for cognitive neurodegenerative diseases.

Excluding mental health disorders will only lead to legal challenges, which are cumbersome and unacceptable to affected patients. This is a political decision that goes against the interests of the few patients who could have been assessed, as is their right.

And yet expanding medical assistance in dying to those affected would make it possible to comply with the Supreme Court of Canada's decision of February 6, 2015, as noted by the Senate in 2021. Judges have never unanimously ruled out mental disorders. This exclusion forces patients, who have already been leading broken lives for decades, to go back to the courts request that their constitutional right be upheld by the government.

To give you some context, let me remind you of paragraph 252 of Superior Court of Quebec Justice Baudouin's decision, handed down on September 11, 2019, which reads as follows:

[252] Vulnerability should not be understood or assessed on the basis of a person’s belonging to a defined group, but rather on a case-by-case basis, at least for the purposes of an analysis under section 7 of the Charter.

This bill means an additional three years of suffering for people with mental disorders on top of the three years that have already passed since March 2021.

Further delays continue to stigmatize people with mental disorders, even though the federally mandated pan-Canadian expert panel on MAID and mental illness released its report in May 2022 and very clearly laid out its recommendations.

On the issue of advance requests for cognitive neurodegenerative diseases, the federal Minister of Health, Mark Holland, has stated that he has no plans to act on advance requests in the near future. However, in Quebec, this right has been enshrined in law since June 2023, and the Criminal Code must be amended so that patients who want to exercise their right can be assessed by providers who will not have to fear criminal prosecution. Our association urges the federal government to take concrete action on this issue.

While Ottawa dillydallies, patients are suffering. Every year, there are 14 new cases per 1,000 people aged 65 and over, and 70 new Alzheimer's cases per 1,000 people aged 90 and over. More than 15 people are impacted every hour of every day by neurocognitive disorders. By 2030, Canada could have nearly one million people living with neurocognitive disorders.

To delay the expansion of medical assistance in dying for advance requests is to dash the hopes of many citizens. Those who are struggling with the terrible loss of their personality are forced to shorten their lives while they are capable of making a decision so as not to find themselves locked in indignity.

In its February 2023 report, the Special Joint Committee on Medical Assistance in Dying already recommended that you move forward by approving advance requests.

The majority of Canadians are in favour of this measure.

Quebec developed its law on advance requests for medical assistance in dying after an in‑depth consultation process that reflects the specific values and concerns of our province, which are in keeping with those of more than 80% of Canadians.

We ask you to consider any approach that would enable Quebec to follow through with its humanist legislation as of this spring, and thus meet the expectations of thousands of Quebeckers. By allowing advance requests, you have the opportunity to demonstrate your commitment to participatory democracy, Quebec institutions and respect for individual end-of-life rights, in addition to showing humanity and compassion.

It is important to note that eligibility for medical assistance in dying brings serenity and peace of mind, and enables people with disabilities to live fully in the present without the anguish of seeing long road ahead, paved with suffering and loss of dignity from a disease that inevitably leads to death.

Thank you.

[Dr. K. Sonu Gaind, Professor of Psychiatry, Faculty of Medicine, University of Toronto, As an Individual]

Thank you, Mr. Chair.

My name is Sonu Gaind. I'm a psychiatrist, professor and governor at the University of Toronto, the chief of psychiatry at Sunnybrook, a past president of the Canadian and Ontario psychiatric associations and now the president of the new Society of Canadian Psychiatry. I'm not a conscientious objector and was the physician chair of my previous hospital's MAID team. My roles inform my expertise, but I'm here as an individual. I'm not representing any group.

I want to first express appreciation for the decision to pause the planned expansion of MAID for mental illness. In all honesty, this was the only responsible choice to make because there remain three critical unresolved issues.

First, MAID is for irremediable medical conditions—ones that can be predicted to not improve. Worldwide evidence shows we cannot predict irremediability in cases of mental illness—meaning that the primary safeguard underpinning MAID is already bypassed—with evidence showing such predictions are wrong over half the time. Second, scientific evidence shows we cannot distinguish suicidality caused by mental illness from motivations leading to psychiatric MAID requests. Overlapping characteristics suggest there may be no distinction to make.

Combining these inconvenient truths with the fact that those with mental illness have higher rates of social suffering, like homelessness and poverty, means that MAID assessors would be wrong most of the time when predicting irremediability. They would wrongly believe they are filtering out suicidality and would instead be providing death this March to marginalized, suicidal Canadians struggling with social distress who could have improved.

People talk of false hope. This would be assessors colluding with the patient's mental illness symptoms and providing false despair. They would be wrongly reinforcing that the situation is hopeless to the most marginalized who could have gotten better. That would be the ultimate discrimination.

How did we get here—twice being at the brink of providing MAID for mental illness and twice saying we are not ready? I think it's because those entrusted to provide evidence as experts have pushed ideology instead.

Senator Kutcher's sunset clause in 2021 never asked if we could responsibly provide MAID for mental illness, but set an agenda predetermining that we would. The CAMAP mental illness module claims to train assessors to weed out suicidality from psychiatric MAID requests, yet it does nothing of the sort and there is no evidence that we can actually do that.

The expert panel tasked with providing safeguards refused to recommend any additional legislative safeguards, despite Canada lacking a due care requirement before providing death by MAID. One-sixth of that panel resigned, yet the panel chair doubled down on pushing expansion, testifying that she is not concerned by the two-to-one gender gap of more women than men getting psychiatric MAID where it is allowed. It's remarkable.

Now, the dissenting senators, unhappy with the pause to expand, aim to convince the Senate to disregard Bill C-62's call to pause, with Senator Kutcher saying they need to “protect against the tyranny of the majority”. Wow.

While citing their historical medical credentials and claiming they are addressing medical and procedural issues of the report, the dissenting senators neglect to provide any evidence to address the key medical issues of the inability to predict irremediability, the inability to filter suicidality and the risks to the marginalized when providing MAID for mental illness.

We're an outlier among peer nations in not even having a national suicide prevention strategy, and these dissenting senators are pushing easier death for mental illness. With any due respect to the dissenting senators, zealotry should not trump reality.

I'm confident that this committee, and I hope the rest of the Senate, will not follow the dissenting senators in their march against evidence.

I must point out the impact that expansionist activism has already had. After Bill C-7's expansion of MAID for any disability in 2021, MAID deaths shot up by 30% to over 13,000 Canadians in 2022, and 2023 will no doubt be higher. Of these tens of thousands of Canadians, over one-third cite that feeling like they are a burden is a suffering that leads them to MAID. Nearly one-fifth cite loneliness, and for over half it was a loss of dignity.

The debate about providing earlier, easier death has sucked all the oxygen out of the room. What are we now providing death for?

As I wrote in the Toronto Star recently, I hope this focuses us on the real issues of our fellow Canadians' suffering and propels us somewhere better than pushing death to solve life suffering. “If we're serious about addressing these issues,” to quote that piece, “Canada has a chance to be a forerunner in the world by, instead of striving to be number one globally in assisted suicide, establishing the world's first portfolio for a Minister for Living with Dignity.”

Thank you again for your thoughtful review of this issue.

I'm happy to answer any questions.

[The Chair, Liberal, Sean Casey]

I call this meeting to order.

Welcome to meeting number 102 of the House of Commons Standing Committee on Health. Happy Valentine's Day, everyone. This is a wonderful way to spend Valentine's evening. I am feeling the love here already.

Today's meeting is taking place in a hybrid format, pursuant to the Standing Orders.

To the folks who are participating virtually, you have interpretation available to you. You have the choice on the bottom of your screen of floor, English or French. Please don't take any screenshots or photos of your screen during the meeting.

In accordance with the routine motion, I am informing the committee that all remote participants, except one, have completed the required connection tests in advance of the meeting. We will test Ms. Long, if necessary, when we get to her.

The subject matter of this meeting is Bill C-62. Pursuant to the order of reference of Tuesday, February 13, 2024, the committee is commencing its study of an act to amend An Act to amend the Criminal Code, regarding medical assistance in dying, no. 2.

I'd like to welcome our first panel of witnesses.

Appearing as individuals, we have Dr. Pierre Gagnon, psychiatrist, by video conference, and Dr. K. Sonu Gaind, professor of psychiatry at the faculty of medicine at the University of Toronto, who is here with us in person.

Dr. Georges L'Espérance, president of the Association québécoise pour le droit de mourir dans la dignité, will also be testifying by video conference.

Dying With Dignity Canada is also with us virtually, represented by CEO Helen Long.

Thank you all for taking the time to appear today. As it was explained, you will each have five minutes for your opening statements.

Dr. Gagnon, we will start with you.

You have five minutes to give your presentation.

Criminal Code

[The Assistant Deputy Speaker, NDP, Carol Hughes]

I declare the motion carried.

Pursuant to order made on Tuesday, February 13, Bill C‑62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2, is deemed referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment and deemed concurred in at report stage.

(Bill read the second time, deemed referred to a committee of the whole, deemed reported without amendment and deemed concurred in at report stage)

The House resumed from February 13 consideration of the motion that Bill C‑62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2, be read the second time and referred to a committee, and of the amendment.

[Joël Lightbound, Liberal, Louis-Hébert, QC]

Mr. Speaker, I apologize to the parliamentary secretary. He is used to this, but I think he can make room for others.

I fully agree with my colleague on many things. We need more mental health resources and more access to care. There are several socio-economic factors that can exacerbate mental illness.

As far as today's bill is concerned, I would like us to look at things from another angle. Let us look at the genesis of what brought us to include mental illness as grounds to request medical assistance in dying. It came from a Senate amendment that, in my opinion, should not have been accepted by the government. I do not want to make any assumptions, but we are hearing rumours that senators might try to block what could be the will of the House to delay this for three years, as Bill C‑62 seeks to do.

What is my colleague's opinion about the role the Senate should play with respect to the House, whose members are duly elected to make decisions?

[The Deputy Speaker, Conservative, Chris d'Entremont]

I appreciate the help, but that is descending into debate. I would also suggest to people here this evening to stick to the bill at hand, Bill C-62, which we are counting down to really quickly.

Questions and comments, the hon. member for Louis-Hébert.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Mr. Speaker, I agree with the member that many Canadians are struggling right now. I would challenge her to reconsider her participation in the confidence and supply agreement with the government as a result. Maybe we will have to agree to disagree on whether more federal spending on federal bureaucracy, sticking its nose into provincial jurisdiction, is actually going to improve the lives of, for instance, kids who are hungry in schools.

I want to ask the member about the bill before us, Bill C-62, and the situation around euthanasia and facilitated suicide in Canada. Because of the challenges we are seeing, with people facing pressure and people being offered or having euthanasia pushed on them, in our last election platform, Conservatives proposed that we would protect the right of patients to choose to receive care in a MAID-free environment. That is, by protecting the conscience rights of physicians and health care institutions, we would preserve the right of patients to choose to be in a hospice or a health care facility where they know they would be offered life-affirming care.

There are many Canadians, I think, who want that. They do not appreciate being in a situation where government bureaucrats, health care officials or bureaucrats in other departments are pushing, promoting or encouraging them to choose a path they do not want to take.

Does the NDP support our proposal to protect the right of patients to choose to receive care in euthanasia-free or MAID-free spaces?