Justice Committee on Feb. 14th, 2023

[The Chair, Liberal, Randeep Sarai]

I call this meeting to order.

Happy Valentine's Day, everyone. I know you all dreamed of this, that on Valentine's Day you'd be sitting in a room in the House of Commons.

[Gary Anandasangaree, Liberal, Scarborough—Rouge Park, ON]

Our spouses are very happy.

[The Chair, Liberal, Randeep Sarai]

They're very happy, yes. At least they can all watch you live. They can know that you're not with anyone else and that you're doing productive work, so it's good. Anyway, I thought I'd make a little light of that.

Welcome to meeting number 50 of the House of Commons Standing Committee on Justice and Human Rights. Pursuant to the House order of February 13, 2023, the committee is beginning its study on the subject matter of Bill C-39, an act to amend the Criminal Code, medical assistance in dying.

Today's meeting is taking place in a hybrid format pursuant to the House order of June 23, 2022. Members are attending in person in the room and remotely using the Zoom application.

I'd like to make a few comments for the benefit of the witnesses and members. Please wait until I recognize you by name before speaking. For those participating via video conference, click on the microphone icon to activate your mike, and please mute yourself when you are not speaking.

For interpretation for those on Zoom, you have the choice at the bottom of your screen of floor, English or French audio. For those in the room, you can use the earpiece to select the desired channel. I remind you that all comments should be directed through the chair. For members in the room, if you wish to speak, please raise your hand, and for those on Zoom, if you wish to speak, please use the “raise hand” function.

I use little cue cards, so when you're down to 30 seconds, whether that's your statement or your questioning, I put this up so I don't have to interrupt you. When you're out of time, I raise the red card and ask you to wrap up. If you don't, then, unfortunately, I will have to interrupt you.

Let's now begin our study of the subject matter of Bill C-39—

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Chair, I see that there are people attending via Zoom. Since I didn't hear you mention it, I just want to make sure that sound checks have been done and that the results were satisfactory.

[The Chair, Liberal, Randeep Sarai]

Absolutely, and thank you for asking. I confirmed with the clerk that the sound tests were all positive.

Let's begin our study on the subject matter of C-39, an act to amend the Criminal Code, medical assistance in dying.

Please welcome with me the Honourable David Lametti, Minister of Justice and Attorney General of Canada. Along with him are the following officials: Matthew Taylor, general counsel and director, criminal law policy section; Joanne Klineberg—she's online—acting general counsel; and Myriam Wills, counsel.

From the Department of Health, we have Sharon Harper, director general, health care programs and policy directorate; Venetia Lawless, manager, end-of-life care unit, via video conference; and Jacquie Lemaire, senior policy analyst, also by video conference.

Welcome.

Mr. Lametti, I'll give you 10 minutes, if that will suffice.

[David Lametti, Liberal, Minister of Justice and Attorney General of Canada]

Thank you, Mr. Chair, for the opportunity to speak to the committee on Bill C-39.

I thank all of you for the urgency you have shown in considering this important legislation.

I would also like to thank officials from both Health Canada and the Department of Justice who are here with me this evening. As you all are fully aware, this bill transcends different departments and, therefore, it is critical that I have Health Canada support here this evening in addition to the usual DOJ support.

In March 2021, the previous Bill C‑7, an act to amend the Criminal Code (medical assistance in dying), provided greater eligibility to medical assistance in dying for people whose natural death was not reasonably foreseeable. It also provided for a temporary exclusion to the provision that mental illness could be the sole basis of a request for medical assistance in dying. If no legislative amendments are made, this exclusion will automatically be repealed on March 17, 2023. On that day, medical assistance in dying will become legal in such cases.

Bill C‑39 proposes to temporarily extend the exclusion relating to mental illness for one year up 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 health care system readiness by, among other things, allowing more time for the dissemination and uptake of key resources by the medical and nursing communities, including MAID assessors and providers. It would also give the government more time to meaningfully consider the report of the Special Joint Committee on MAID, or AMAD, which is expected to be tabled by Friday, February 17.

I am confident that a temporary one-year extension will allow us to proceed in a measured and prudent way and will ensure that we get this right. As always, our government remains committed to ensuring that our law reflects Canadians' evolving needs, protects those who may be vulnerable and supports autonomy and freedom of choice.

As I have just explained, the previous Bill C‑7 temporarily excluded access to medical assistance in dying in cases where mental illness was the sole factor. This temporary exclusion is based on the fact that these cases are often complex and that it would be better to have more time to reflect on them.

Over the past two years, much work has been accomplished. The Expert Panel on Medical Assistance in Dying and Mental Illness has conducted an independent review of the protocols, directives and safeguarding measures to be recommended in those cases where mental illness is the basis of a request for medical assistance in dying. The expert panel's report was tabled in Parliament on May 13, 2022.

When it was conducting its parliamentary study, the Special Joint Committee on Medical Assistance in Dying also looked at the provisions of the Criminal Code concerning medical assistance in dying and their application in various contexts, such as that of mental illness. In June 2022, the committee published an interim report containing a summary of the testimony that it had heard or received. Witnesses included psychiatrists and other physicians, as well as people living with a mental illness and representatives of various stakeholder groups. We are looking forward to the special joint committee's final report which will be presented before February 17, which is this Friday.

I commend the expert panel and the special joint committee for their hard and important work. MAID is a very personal and challenging subject, and we are better for their careful study and advice.

In addition to the work of the expert group and the special joint committee over the past two years, the provinces, territories and health care community have been working with Health Canada to ensure system readiness. They have developed resources to support MAID assessors and providers, including clinician education and training. They have developed the necessary policies and practice standards. The work is well under way.

Some provinces likely would have been ready to begin offering MAID for mental illness to eligible and properly assessed patients on schedule in March 2023, but we heard from many that they were not quite ready. An extra year will make sure that everyone is ready and well equipped to make MAID for mental illness available in a way that is prudent and safe.

I'm here to talk to you today about the urgent need to extend the exclusion of MAID for mental illness by one year, but I would be remiss if I did not also take this opportunity to address some misinformation about MAID that I've heard over the past few months. I want to reassure all Canadians and all of you around this table that Canada's MAID regime is safe. The system has extensive checks and balances to make sure that only eligible people who clearly and freely choose MAID can access it.

In 2021, in response to the Superior Court decision in Truchon, former Bill C-7 expanded eligibility to receive MAID to people whose natural death was not reasonably foreseeable. To address the additional complexities of these kinds of cases, we created a separate and even more stringent set of procedural safeguards that must be satisfied before MAID can be provided.

Some of these additional safeguards include a minimum 90-day period for assessing eligibility, during which careful consideration is given to the nature of the person suffering and whether there is treatment or alternative means available to relieve that suffering. This safeguard effectively prohibits a practitioner from determining that a person is eligible to receive MAID in fewer than 90 days.

Another additional safeguard is a requirement that one of the practitioners assessing eligibility for MAID has expertise in the underlying condition causing the person's suffering, or that they must consult with a practitioner who does have that requisite expertise. The assessing practitioners must also ensure that the person is informed of the alternative means available to address their suffering, such as counselling services, mental health and disability support services, community services and palliative care. It's not enough to merely discuss treatment alternatives. They must ensure that the person has been offered consultations with relevant professionals who provide those services or care. In addition, both practitioners must agree that the person gave serious consideration to treatment options and alternatives.

MAID for mental illness poses even more complex challenges. That is why we need to take the time necessary to ensure that the health care system is completely ready before we expand eligibility for MAID to those whose sole underlying condition is a mental illness. We recognize that mental illness can cause the same level of suffering that physical illness does.

We are aware that there are people who were waiting to become eligible to receive MAID in March 2023. We recognize that these people are suffering and will be disappointed by an extension of the ineligibility period. We empathize with these individuals.

Nevertheless, I believe this extension is necessary to ensure the safe provision of MAID in all cases where mental illness forms the basis for a request for MAID. We need this extension to ensure that we do not rush the expansion of eligibility and to ensure that we make any changes in a prudent and measured way. Our main priority is to ensure the safe provision of MAID. I'm confident that courts would find this short extension to be constitutional.

Canada has implemented legislation on medical assistance in dying that supports autonomy and freedom of choice while offering protection to the most vulnerable. We believe that the timeframe provided for in Bill C‑39 will be sufficient so that this continues to be the case.

We need to take the time to get this right. The one-year extension will give more time to ensure that the health care system is ready, and more time to meaningfully consider and act on the special joint committee's recommendations.

Merci. I look forward to your questions.

[The Chair, Liberal, Randeep Sarai]

Thank you, Minister Lametti.

Now we'll go to our first round of questions, beginning with Mr. Moore for six minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Chair.

Minister, we're here today because two years ago, you made a mistake that was offside with your caucus. We know that you voted against the first MAID bill because you didn't think it went far enough. That made you an outlier in your caucus. You came to this committee and said that Bill C-7, an act to amend the Criminal Code for MAID, was constitutional.

The unelected Senate amended it dramatically and created a brand new bill, I would argue, saying that those who are suffering from mental illness would be eligible for MAID. This extension is evidence that you got it wrong two years ago.

I know you're a professor, but you're not the only professor. I have a letter here, signed by 32 law professors, which says:

We disagree as law professors that providing access to MAiD for persons whose sole underlying medical condition is mental illness is constitutionally required, and that Carter v Canada AG created or confirmed a constitutional right to suicide, as Minister Lametti has repeatedly stated. Our Supreme Court has never confirmed that there is a broad constitutional right to obtain help with suicide via health-care provider ending-of-life.

Minister, quickly, who is right? Is it you or these 32 law professors?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I think I'm right, quite frankly.

[Rob Moore, Conservative, Fundy Royal, NB]

Of course you do.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I believe that we got it right with our initial bill, Bill C-7, in 2021. What I felt we needed at the time, with respect to mental illness, was more time. At that time, I believe I was right, initially, to say we needed more time.

We accepted the parliamentary process for what it was, and the Senate added the category of mental illness as the sole underlying criteria. We added a time period in order to do the work. We feel that work has, for the most part, been done, but we were slowed by the COVID pandemic, in particular. It prevented all of what we felt was the necessary work from being done. At the federal level, we feel we've done most of it.

I know that Minister Duclos and others feel that a great deal of work has been done. The chair of the expert committee, Dr. Gupta, feels we were ready to go.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Minister. I have limited time.

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I think we have a sound position now, and I believe there is a very strong section 7 argument to say that we need to provide—

[Rob Moore, Conservative, Fundy Royal, NB]

Minister, I have only six minutes. I gave you time to answer it.

I wish I could say it surprises me that you think you are right, when these 32 law professors say you're wrong. They say in this letter that you're wrong.

You just indicated, Minister, that there's some kind of constitutional requirement that we do this, but two years ago, you came to this committee with what's called a charter statement. You, as the Minister of Justice and Attorney General, have to certify that all government legislation is charter compliant. Your own charter analysis, speaking about mental illness, says:

...it is based on the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness. First, evidence suggests 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. Second, mental illness is generally less predictable than physical illness in terms of the course the illness will take over time. Finally, recent experience in the few countries that permit MAID for people whose sole medical condition is a mental illness (Belgium, Netherlands and Luxembourg) has raised concerns. The concerns relate to both the increasing numbers of these cases and the wide range of mental illnesses in respect of which MAID has been provided.

This isn't the 32 professors talking. This is you. This is your charter statement.

Who are we to believe? Is it the Minister Lametti who sat in that exact chair two years ago with this charter statement or the minister who is here before us today, saying that somehow this is constitutionally required?

Have you updated your charter statement, now that we have an entirely new bill that expands MAID in Canada for those suffering with mental illness?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

I will be depositing a charter statement with respect to this bill.

The short answer is that I was right in 2021 and I'm right now.

A lot of work has been done since 2021. We've had an expert committee that has looked at this. They have evaluated the safeguards, they have evaluated clinical practice and they have produced a set of guidelines. A great deal of work has been done with provinces and territories in this regard. We're not in the same place we were in 2021.

You will recall that when a number of people around this table asked me in 2021, I said we simply needed more time with respect to mental illness. The direction was always going to be that we would get there because, as I've said—and even if it is true that Carter didn't explicitly state this—the direction of the courts is clear that this is a section 7 and section 15 right.

[Rob Moore, Conservative, Fundy Royal, NB]

Minister, I have only 30 seconds.

What you just said, and what all these law professors said.... I don't want Canadians to be misled. Yesterday, in debate, your own caucus said there's a constitutional requirement, but you told us two years ago there was no constitutional requirement.

You've adopted a radical amendment from an unelected Senate. You made it your own and now you're saying you're going to bring in a charter statement. Isn't the charter statement supposed to precede the bill? We should have that charter statement now.

Your charter statement says that extending MAID for mental illness is wrong. That is the statement that you deposited with this committee, so who is right? Is it you or you?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

That statement was two years ago.

As I said two years ago, we thought that extending MAID for mental illness as a sole criterion was inevitable and the courts would find it to be a constitutional right that Canadians had, but we needed more time.

We've now taken that time. We have done a great deal of work in two years, and we will deposit a charter statement within the usual norms for the tabling of a bill, as we are doing right now.

[The Chair, Liberal, Randeep Sarai]

Thank you, Mr. Moore.

Next we will go to Madame Brière for six minutes.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you, Mr. Chair.

Good evening, everyone.

Minister, thank you for coming this evening.

You mentioned you needed more time. Can you please explain how this extension will give you enough time to reach the objectives of the government which include preparing the healthcare system?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

Thank you for your question, Ms. Brière.

As I have just said, we have accomplished a lot. That includes the work of the Expert Panel on Medical Assistance in Dying and Medical Illness, the Special Joint Committee on Medical Assistance in Dying, the federal government and Health Canada, as well as the provinces and territories, experts, doctors and nurses.

We are nearly there. We just need to make sure that everyone is on the same wavelength. In order to do so, we need another year to take into account the work that has been done so that the assessors and healthcare providers that are working in the field are ready to assess requests for medical assistance in dying in a safe and consistent manner. We are here to take the time that we need to ensure that the guidelines and the framework are understood by everyone.

We are on the right track. As I said, many experts believe that we are already there and that we should go forward right now, but we want to make sure that we are proceeding in a safe and prudent manner. That's the reason we're asking for another year, to make sure that we are all on the same wavelength.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Thank you.

Do you think it was necessary to consult experts and the medical community on this complex issue?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

It is obviously a very complex and personal issue. We have consulted clinicians, who will care for the people that will request MAID in this context, and they are reflecting on the issue. They're the ones who work with their patients and know them the best. They have to work together and with their professional association to ensure that all options have been looked at and tried.

We are nearly there, but we need more time, particularly as we want to be sure that the system will work properly.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

On that precise point, it is important that the practitioners who will be able to offer MAID to people suffering from mental illness as the sole underlying medical condition be truly able to differentiate between the cases where people are suffering from suicidal ideation or suicidal tendencies and those where people are eligible for MAID.

What measures can the government take to improve services and support for mental health?

[David Lametti, Liberal, LaSalle—Émard—Verdun, QC]

As a government, we recognize the challenges associated with mental health. A few years ago, in 2016, we started by investing $5 billion in the healthcare system so that provinces could tackle the issue of mental health and offer better support to people who are suffering. We are continuing to work on this.

The agreement with the provinces, which was discussed this morning, and the bilateral agreements that will follow will allow us to tackle certain issues and challenges, and one of the challenges is precisely mental health.

We hope that by providing the healthcare system with more resources and by working with the provinces and territories, we will be able to set up a quality framework for people suffering from mental disorders in order to improve their health. That is what Canadians are asking us to do, and they are asking us to work together.

This is a priority for our government. We are putting together the measures that were announced.

[Élisabeth Brière, Liberal, Sherbrooke, QC]

Non‑profit organizations that work with this group of people could be an ally to the healthcare system. What have you heard on the ground about this?