Evidence of meeting #2 for Medical Assistance in Dying in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
Liberal
The Joint Chair Liberal Marcus Powlowski
I'm sorry to interrupt, Professor Downie. I should have given you a warning beforehand that I would give you a little warning of how long you have left. I'm going to give you an extra—
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
I just need five seconds.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
The balance for any further extension is completely, almost absurdly, inconsistent with the legal threshold and relevant precedents.
In sum, any further extension of the exclusion of MAID MI-SUMC cannot be demonstrably justified and would be in breach of the charter.
Thank you.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Professor Downie.
Now, Professor Lemmens, you have five minutes.
When there are 30 seconds left, I will hold something up to indicate to you to try to hurry up and finish your remarks.
Trudo Lemmens Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Joint chairs, dear members, my name is Trudo Lemmens. I have been a professor of health law and bioethics for over 25 years and have an extensive research record related to MAID, including MAID for mental illness. I am a member of the Ontario MAID death review committee, but I speak in my own name. Thank you for inviting me.
Let me be blunt: There are myriad reasons not to introduce MAID for the sole reason of mental illness, and they are clearer than ever. First, it is not constitutionally required. Second, evidence from Canada, Belgium and the Netherlands shows it would create significant additional risks of premature death for many Canadians with mental illness.
On constitutionality, I will be brief. Submissions to AMAD by constitutional scholars and a letter signed by more than 30 scholars, including leading constitutional and human rights experts, support this. The committee can also consult a co-authored analysis in the Manitoba Law Journal, and I'm sure they will hear from other constitutional colleagues.
Second, it is wrong to claim that denying MAID for mental illness alone is discriminatory simply because people with concurrent physical conditions have access, as is sometimes stated. This reverses the burden of justification. Instead we must ask what current MAID problems tell us about the risk in expanding access.
Troubling evidence is accumulating. The Ontario MAID death review committee reports cited by the UN Committee on the Rights of Persons with Disabilities in support of its request not to introduce MAID for mental illness and to withdraw track 2 MAID contain case summaries that reveal at times sloppy, impressionistic and minimalistic assessments. These reports include cases in which unaddressed suicidality, psychosis, substance use issues, pressure from caregiver burnout and cognitive impairments did not stop MAID providers from ending people's lives. Some cases involved only cursory reviews of mental health history.
Judicial interventions, other reports and media reports reveal similar concerns elsewhere. Examples include a woman seeking suicide prevention in B.C. being informed about MAID and a man who was involuntarily hospitalized for suicidality receiving MAID while on a day pass.
Current practice provides a critical insight: Some MAID providers already function as a pole of attraction for suicidal people. In Canada, and in Belgium and the Netherlands, which permit psychiatric euthanasia, a small number of permissive clinicians drive controversial cases. People shop for assessors who are willing to say yes, even when care teams are working toward recovery. Such providers become a predictable pathway, much like a suicide-prone bridge, drawing people toward a guaranteed death.
We know that when a known pathway is removed, many people who otherwise would die by suicide will be saved. MAID for mental illness does the opposite of what we otherwise do—namely, installing special guardrails on such bridges. It institutionalizes a medicalized method of death for mental illnesses in which hopelessness is often a key symptom.
Gender concerns are key too. Women attempt suicide at about twice the rate of men, and in jurisdictions allowing psychiatric euthanasia, many more women than men receive it. Of 30 youth aged 17 to 30 who received psychiatric euthanasia in the Netherlands in 2024, an overwhelming majority were women.
Reassurances that the practice will remain rare and limited to cases of years of treatment failure are speculative and unfounded. MDRC reports already indicate that MAID has been provided despite unaddressed mental health and substance use issues, minimal exploration of palliative, disability or community supports, and track shifting from track 2 to track 1.
We will further see many more cases than in Belgium or the Netherlands, where psychiatric euthanasia, particularly in the Netherlands, is on the rise. Some psychiatrists there already use non-existing clinical concepts, such as “mentally terminal”, to approve patients for euthanasia. Unlike in Canada, Belgian and Dutch law still at least requires a clinician provider to agree that no other treatment options remain. Canada's MAID law and policy emphasize access over protection.
Several Canadian provinces face worse problems with access to timely and quality mental health care, as 10% of people wait for six months or more for mental health care and 50% wait for a month.
The question before Parliament is very concrete: Knowing that people with intersecting disabilities already face risk of death in our MAID regime, will the law strengthen guardrails and prioritize suicide prevention or do the opposite?
Thank you.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Professor Lemmens.
For the first round of questioning, we'll start off with Mr. Cooper from the Conservative Party for five minutes.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Thank you, Mr. Chair.
Professor Lemmens, Professor Downie asserted that the declaration in Carter was that “a grievous and irremediable medical condition” includes mental disorders. The last time Professor Downie appeared before this committee, in November 2023, she stated that if the Supreme Court intended otherwise, the court would have said so expressly. What Professor Downie conveniently didn't mention is that the court went on to state:
The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.
To be clear, the factual circumstances in Carter did not in any way involve persons seeking MAID who had an underlying mental health disorder. Is that correct?
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Yes, that is obviously correct. There are other statements as well that have to be taken into consideration in the Carter case.
When Belgian evidence was presented before the Supreme Court—which was exceptionally allowed because the government made an argument that developments in Belgium should be taken into consideration at the Supreme Court level—these were changes that had taken place since the British Columbia Supreme Court decision in Carter.
The court said of that evidence that the Belgian evidence was deemed not relevant because it related to euthanasia for mental illness for minors and for minor conditions. The court also said that the Belgian evidence indicated problems with the system that left too much discretion in its rules, while we have a system that actually allows for more discretion, so clearly I think there are other statements.
I would also emphasize that in the Carter decision itself there are very frequent references throughout the judgment—and I urge people to read the judgment—to end-of-life situations, to treatment withdrawal for people that will result in immediate death. The comparison that the Supreme Court made in Carter was really with end-of-life practices, and it left one year in the constitutional dialogue that we have in Canada, one year for Parliament to enact new legislation.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
That's right. The reference to the evidence from Belgium with respect to psychiatric disorders was that the court expressly stated that it fell outside the scope of the decision. That was at paragraph 111. Isn't that the only express mention of psychiatric disorders in the Carter decision? It was to say it had no bearing on the case.
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
That's right.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Okay. Professor Downie then goes on to cite the E.F. decision of the Court of Appeal of Alberta, but isn't it the case that the E.F. decision was before Bill C-14?
That decision did not involve any interpretation of charter rights, nor the consideration of the constitutionality of any legislative provision. The court grounded its decision in stating that it was a “limited inquiry [that] is individual- and fact-specific”.
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Yes. That's correct.
I would also say that the court there ruled that Carter could not be seen as excluding mental illness in the particular case where in a particular interim period they had to rely on the Carter decision, but the court also dealt with the case of conversion disorder.
I would urge people to really look at what that case involved, at a commentary that has been published on conversion disorder, and, I would say, at the red flag that goes up when you look at how this case was decided.
There is a commentary that was written by an expert, Trevor Hurwitz, in the Journal of Ethics in Mental Health, which emphasizes that in this particular case, for example, there was only a chart review to confirm the diagnosis of the lady in question. Trevor Hurwitz, in that article, goes into the details of the complexity of diagnosing such conditions. I would say that the case actually highlights the dangers of allowing fast-track—
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Thank you. Time is very limited.
I want to deal finally with the Truchon decision. Isn't Professor Downie confusing or conflating issues tackled by the court related to decisional capacity and vulnerability as opposed to eligibility for MAID where mental illness is the sole underlying condition, in the reasoning of Madam Justice Baudouin?
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Again, the Truchon decision is a lower court decision. It was not appealed. We can disagree about the reasons that it was not appealed, but many people have criticized it for its not being appealed.
It's also important to emphasize that the Truchon decision was not about mental illness, and the court recognized that. There are discussions about mental illness and suicide, but I would also indicate that in the Truchon decision, for example, the court relied significantly on a declaration by the International Association for Suicide Prevention. That declaration, which made an artificial distinction between assisted dying and suicide, has since been withdrawn and has been replaced with an explicit expression of concern by that same organization with regard to the danger of expanding euthanasia and assisted dying legalization outside of the end-of-life context. Therefore, I would question the reliability of the Truchon decision when it comes to issues around mental illness.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Thank you, Mr. Chair.
Thank you to both witnesses for being here today. I know this isn't the first time for either of you to appear before this committee. It's your first time in this iteration, but we've met before on at least two prior occasions. I take it that neither of your positions have changed much since the last time we were here.
You just nodded. Thank you.
To start with, I want to pick up on something both of you said.
Professor Lemmens, you said that the system emphasizes access versus protection.
Professor Downie, you, on the other hand, said that clinical readiness has been met.
Those are inconsistent statements, in my opinion.
A witness we had in the first hour, Dr. Gupta, said that there's a consensus in the psychiatric community that the issues can be addressed, that they're ready and that it's irr...incurable. I always have trouble pronouncing irremediable.
That's what I want to talk about with you, Professor Downie. Have you ever done any medical legal work?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
What do you mean by that? I'd have to ask.... Do you mean advising people about a case?
Liberal
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Do you believe the system is ready from a legal perspective?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Do you believe it's important that the system be ready from a medical perspective?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes.
Liberal
James Maloney Liberal Etobicoke—Lakeshore, ON
Okay.
Do you believe it is ready, when there's not a large consensus of doctors who agree that it's ready to go?