Good evening. Thank you for the invitation to speak with you.
My name is Jocelyn Downie, and I'm a professor emeritus in the faculties of law and medicine at Dalhousie University. I've been honoured to be made a fellow of the Royal Society of Canada and the Canadian Academy of Health Sciences, and to be named to the Order of Canada for my work on this topic.
I start tonight with the committee mandate “to verify the degree of preparedness attained for a safe and adequate application of MAID” in MD-SUMC situations, with particular reference to standards of practice referred to by the expert panel.
On this metric, preparedness has already been established through your hearings. You know that the model practice standard was published in March 2023, and you have received uncontroverted evidence that the professional regulatory bodies are ready. However, in case you go beyond this mandate and/or adjust the metrics, more needs to be said.
First is the charter. A barrier to access to MAID based on a diagnosis of a mental disorder is a limit on the section 7 and 15 rights of persons with mental disorders. The arguments for this can be found in the testimony of numerous witnesses, briefs and legal decisions. A purported lack of preparedness might be presented as an attempt to justify the limits on the rights under section 1. However, that argument would fail.
The federal government is prepared. It has amended its reporting regulations, created an independent expert panel on MAID and mental illness, created an independent expert task group to draft and model practice standards, funded the independent national accredited curriculum to train MAID assessors and providers, and supported a knowledge exchange workshop that brought together MAID assessors, providers and psychiatrists from every jurisdiction in Canada to prepare together for the implementation of MAID MD-SUMC. Furthermore, the very people tasked with regulating the conduct of MAID assessors and providers have confirmed for you that they are prepared.
Clinical preparedness has been established through the delivery of multiple training sessions across the country, the existence of a community of practice among expert psychiatrists coast to coast, the experience that MAID assessors and providers already have from assessing MAID requests from persons with mental disorders, the experience that psychiatrists already have from acting as consultants for both track one and track two patients, and the development of protocols and policies at the programmatic level.
Any lack of political preparedness is not a justification for limiting charter rights. Any purported lack of clinical preparedness by some psychiatrists is not a justification for limiting charter rights. Not all clinicians in Canada were prepared for MAID when it first came in. Any individual psychiatrist who does not feel prepared is under no obligation to participate in MAID. It is abundantly clear that psychiatrists from across the country—including eminent psychiatrists, eminent experts in psychiatry—are prepared.
Some might say that not all Canadians are prepared. However, not all Canadians were prepared for MAID. Furthermore, no person is ever compelled to get MAID. The protection of charter rights does not and cannot wait for some subset of the public to be prepared. A preparedness claim, therefore, cannot serve to save the limits on charter rights that any further delay would entail.
Now let's turn to the division of powers under sections 91 and 92 of the Constitution Act. The federal Parliament must approach the issue of preparedness with attention to its own jurisdiction. It is abundantly clear that it is prepared. Even if you aren't persuaded that all the provinces and territories are ready—which is counterfactual, given the unequivocal evidence from the provincial-territorial regulatory colleges, as well as information available about MAID programs and PT oversight mechanisms—the division of powers dictates that you not delay further.
Look to history. Consider, for example, the 1969 act that made abortion legal under certain conditions. The act was passed in May 1969. Royal assent was given in June 1969. The abortion provisions came into force in August 1969. Parliament didn't wait for the newly required therapeutic abortion committees to be established in the hospitals across the country. The federal Parliament made the changes it felt were right to protect women's rights, and it left it to the provinces and territories to do what was necessary to implement the changes at their level.
There's also a logical and ethical basis for this view of preparedness. If the federal Parliament were ever to tie the changes to the Criminal Code to provincial and territorial preparedness, it would be allowing the provinces and territories to subvert the federal Parliament's decisions with respect to criminal law. It would also be allowing any laggard provinces and territories to hold hostage those other provinces and territories that got ready. It would allow the protections of the charter rights of people in the provinces and territories that got ready to be blocked by those provinces and territories that chose to not be ready. This is something the federal Parliament should not be a part of.
I leave you with one final thought. The trial decision in Carter was released in 2012. Truchon was decided in 2019. Bill C-7 was passed in 2021. It is now 2023. A further delay would take us to 2025. Justice delayed is justice denied.
Thank you.