Thank you, Chair.
By way of introduction, I'm a lawyer with a practice that includes human rights cases of provincial and national significance, including those that concern section 15, the equality provision of the charter.
I was intervenor and co-counsel in the case of Ontario v. G, a 2020 Supreme Court decision that applied section 15 in relation to mental disorder.
I am here today to offer my legal perspective, but I also note that I am a person who has lived with a mental illness for 18 years.
I will first explain how section 15 relates to MAID MD-SUMC, or mental disorder as the sole underlying medical condition. Second, I will discuss my view that the expert panel's recommendations comply with the spirit and letter of section 15 of the charter.
Subsection 15(1) confers the right to equal protection and benefit of the law. If a law makes a distinction in a discriminatory manner between persons on enumerated or analogous grounds, that is a subsection 15(1) violation. Mental disability is an enumerated ground.
A distinction is discriminatory if it imposes a burden or denies a benefit in a way that reinforces, perpetuates or exacerbates disadvantage. In the case law, the factors relevant to this determination are myriad and can include psychological or physical harm.
If Parliament passed legislation that created a separate MAID regime for those with a mental disorder and MAID was more difficult to access under that regime, that could violate subsection 15(1). This is because the regime would impose a burden on persons who seek to access MAID under the protected ground of mental disability.
However, section 1 of the charter permits a violation of subsection 15(1) if the state can establish it is within “reasonable limits...[that] can be demonstrably justified in a free and democratic society”. Whether this circumstance exists is assessed using the Oakes test: The state must have a compelling and substantial objective for the rights infringement, and the means chosen must possibly further that objective and interfere with the charter right as little as reasonably possible, and the benefits of the infringement must outweigh its negative effects.
In my view, the recommendation of the expert panel on MAID MD-SUMC conforms to the spirit and letter of the section 15 jurisprudence. I will highlight three reasons why.
First, the expert panel rejects the stereotype that those with mental disorders are the only group affected by concerns like incapacity, suicidality or the impact of structural vulnerabilities. The expert panel recommends that its safeguards, protocols and guidance apply to all clinical situations in which these and related concerns arise. The Supreme Court, in the case of G, emphasized how those with mental disorders lose their rights and freedoms specifically because of stereotyping about their propensities and capabilities. The expert panel's recommendation for a universally applicable approach precludes the application of that stereotype.
Second, flowing from the expert panel's observation about the universality of these concerns, it does not recommend a separate regime under the Criminal Code for MAID MD-SUMC. This approach reduces the risk of a subsection 15(1) violation, because there is no formal distinction made under the law in relation to mental disorder. To be clear, a distinction can also exist through the uneven application of a facially neutral law. However, a formal distinction would explicitly entail differential treatment and increase the risk of a subsection 15(1) violation.
Third, the expert panel endorses individualized forms of assessment. The panel emphasizes that case-by-case evaluations by MAID assessors of incurability, irreversibility and intolerability should be performed. This suggestion conforms to recent subsection 15(1) jurisprudence, which has recognized that an individualized assessment can be a less impairing alternative to a categorical form of treatment based on a prohibited ground of discrimination.
That concludes my opening statement. Thank you.