First, thank you very much to the committee for having me here today. It's an honour to address you, and I hope the remarks I can contribute will be helpful to you in your consideration of a difficult issue.
As Mr. Garneau mentioned, my name is Jennifer Chandler. I'm a full professor of law at the University of Ottawa, where I teach health law and specialize in mental health law, neuroethics, issues around brain interventions and the law.
I am speaking as an individual, of course, and don't represent the university or the expert advisory panel of which I was a member, nor do I represent the views of the CCA panel, of which I was also a member.
I was thinking to myself what I could say in these opening remarks that would be of use to this group in light of what other witnesses before me have brought to you, and have done an excellent job bringing to you. I thought that perhaps, given that I'm a lawyer, I would speak from a legal perspective and talk about the question of discrimination, because this is invoked as a central issue in trying to decide what to do about eligibility of people with an SUMC, sole underlying medical condition, being mental disorder.
At the moment, as you know, the law excludes a particular category of people from eligibility, namely, those suffering solely from mental disorder. This exclusion is defined on the basis of a specific class of disability.
There are two arguments out there, which you have heard, about how this is or is not discriminatory.
One view holds that excluding a group of people is discriminatory when done on the basis of mental disability, because it withholds from them a benefit or an option that's available to others, and this is unjustified when they meet all the other eligibility criteria that others meet.
Another view holds that offering medical assistance in dying to people with disabilities, including mental disabilities, is discriminatory because it exposes them and only them, people with disabilities, to an increased risk of death by suggesting perhaps that death might be a good option in their circumstances and/or by making it easier for them to access death.
In other words, then, to summarize, in one case we have access to an option that's viewed as a benefit, which is unfairly withheld, and on the other hand access to an option, which is a harm, which is unfairly imposed. How does one reconcile these views?
I think one can be confident that people holding both of these views hold them in good faith and strongly believe in the justice of the view they're espousing with respect to discrimination.
In fact, as you've heard—I was watching the proceedings from Friday—people with lived experience hold these these opposing views as well.
I propose to offer a few thoughts from a legal perspective on how these opposing views, what's discriminatory and what is just or unjust in these circumstances, can be reconciled. Evidently, my view is a legal one and should be tempered with the insights of those with lived experience and those who provide care, and in recognition that others might differ with my reading of the cases and my interpretation of the law.
Essentially the Supreme Court of Canada has had to address this particular problem on multiple occasions in the past of whether differential treatment of a group with a disability is discriminatory. In those cases, it has noted the challenge of what it came to call the “difference dilemma”. In essence, what this alludes to is that in some cases to achieve equality, to promote dignity, it's necessary to treat people differently, whereas in others it's necessary to treat them in the same way.
To give you a concrete example from a case involving segregated schooling for children with severe physical disabilities, the court said that a separate or segregated stream of schooling could protect equality or violate equality depending upon the needs, capacities and circumstances of the particular child in question.
This difference dilemma means it's very hard to point to exact same treatment or differential treatment to really get at this question of what best promotes equality.
How then do we figure it out?
If you look at the range of questions that has come to the Supreme Court posing this particular type of problem in a range of cases, whether it's schooling or whether it's access to particular workers' compensation benefits for physical versus mental injuries, my reading is that the Supreme Court is quite uncomfortable with blanket attributions of a specific set of needs capacities and circumstances to a group as a whole. It is very much more likely to be comfortable with a regime, if it is possible to do so, that provides for individualized assessments to verify that any presumptions are in fact accurate in individual cases.
We come to the blanket exclusion of all people with mental disorders. This would seem to be a problem. This is a very heterogeneous group of people with very different needs, capacities and circumstances. The question I think for you is, do criteria in the Criminal Code, along with recommended measures that the expert advisory panel put in place, offer an adequate framework to do this kind of individualized assessment safely? I think so. I was a member of that expert advisory panel, so, of course, I would think that we had put something forward that could work, with certain caveats that I'd like to draw to your attention.
This question of adequate funding is a key safeguard. It's an adequate funding question in two directions. Adequate funding of social supports is key to ensuring that those who can be supported, whose suffering can be alleviated, will have the opportunity to have it alleviated. A good and compassionate society will try to do its best to help those who are struggling. At the same time, we have to note that there are situations in which just about any social supports will not be sufficient to alleviate intolerable suffering.
In a second way, adequate funding pertains to the kind of funding that's available to assessors and the infrastructure made available for assessors to do a careful and thorough assessment. The kind of thorough multidisciplinary assessment required here involves a long process and multiple people involved in coordinating a range of potential supports. This will take time and resources to do properly.
If those funds are not available, I see a twin risk. One, people will withdraw from providing assessments to people who are suffering intolerably, because they won't feel that they can do it properly, or conversely, some might do a rushed assessment with risk in the other direction.
I think the kinds of things we put forward in our report with respect to the infrastructure are quite important to consider and to put in place within the realm of what's reasonable and possible.
The other safeguard—