Medical Assistance in Dying Committee on March 24th, 2026

[Dr. Mona Gupta]

It has been five years since the exclusion clause was first introduced, and provinces and territories have had quite a bit of time. If we recall, Bill C-14 was passed and a MAID system grew up overnight. In Quebec, we had 18 months to prepare, but that was 18 months for an entire MAID system. It's been five years now, and I think provinces and territories are competent. In fact, it is their responsibility and their jurisdiction to create a MAID system that is suitable for their local needs.

In my experience in talking with my colleagues across the country, they all have slightly different systems, but those systems are designed with the intent of serving the people of that jurisdiction in the best way that those authorities have deemed suitable.

[The Joint Chair, Liberal, Marcus Powlowski]

Thank you, Dr. Gupta and Ms. Koutrakis.

Mr. Thériault, you have the floor again for two minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Dr. Gupta, in a National Post article featuring an interview with Dr. Gaind, it is stated that a doctor in the Netherlands must conclude that the person’s suffering is unbearable. Both the doctor and the patient must be convinced that there are no reasonable alternatives. However, Dr. Gaind points out that Canada currently has no similar requirements regarding reasonable care. People must be informed of the means available to alleviate their suffering.

On page 13 of the report, it states:

[...] the incurability of a mental disorder cannot be established in the absence of multiple attempts at interventions with therapeutic aims.

Here, we’re getting into the definition of "reasonable".

Recommendation 8 states that assessors should ensure that the requester is consistent and thinking rationally during a period of stability, not during a period of crisis.

Then, in Recommendation 10, it states:

The requester should be assessed by at least one assessor with expertise in the condition(s). In cases involving MAiD MD-SUMC, the assessor with expertise in the condition should be a psychiatrist independent from the treating team/provider. Assessors with expertise in the person’s condition(s) should review the diagnosis, and ensure the requester is aware of all reasonable options for treatment and has given them serious consideration.

It strikes me as a bit out of place. Do you agree with Dr. Gaind that there is no such concept of reasonable care being provided?

[Dr. Mona Gupta]

Thank you very much for the question.

I disagree with his assessment of clinical guidelines and best practice regarding eligibility assessment.

I think what happened in Canada is exactly what we wanted. That is, once there is a legislative framework governed by the Criminal Code—we agree that it is not in the Criminal Code that reasonable treatment options will be set out—it is up to clinicians to produce documents containing clinical guidelines, which tell clinicians what they must do and what steps to follow. That is exactly what is found in the report and in the documents I mentioned.

[The Joint Chair, Liberal, Marcus Powlowski]

Thank you very much.

Mr. Dalphond, you have the floor for another two minutes.

[Pierre Dalphond]

Thank you, Mr. Chair.

If you would like to resume answering my last question, Ms. Gupta, you had gotten as far as “recently“.

[Dr. Mona Gupta]

Thank you very much.

[Pierre Dalphond]

You have one minute and forty-five seconds to finish your overview.

[Dr. Mona Gupta]

Yes.

Very recently, the Canadian Psychiatric Association set up a working group to draft a document containing recommendations, specifically to explain to clinicians how to assess a mental disorder and determine whether it constitutes a serious and irreversible medical condition. This document also addresses the management of suicide risk in the context of a request for medical assistance in dying.

This is therefore a document produced by psychiatrists to assist clinicians, including psychiatrists, when the requester has a mental disorder.

[Pierre Dalphond]

Could you forward this document to the committee?

[Dr. Mona Gupta]

Yes. As soon as it is published, I will be able to send it to you.

[Pierre Dalphond]

Thank you.

[K. Sonu Gaind]

Mr. Chair, I reiterate a point of personal privilege on a comment Monsieur Thériault made. He specifically referenced something of mine in an article that is inaccurate.

[The Joint Chair, Liberal, Marcus Powlowski]

What is the point you want to make?

[K. Sonu Gaind]

The point is that he was suggesting that my comment that we lack a due care requirement is inaccurate. It's perfectly accurate. We don't have any legislative safeguards for that. That was the point I was making.

[The Joint Chair, Liberal, Marcus Powlowski]

We've formally finished the order of questioning. Let me pose—

[The Joint Chair, Hon. Yonah Martin]

What about me?

[The Joint Chair, Liberal, Marcus Powlowski]

Senator Martin, the most important person of all....

[The Joint Chair, Hon. Yonah Martin]

I know Dr. Gupta says that her colleagues say the provinces are ready, but I'm aware that nine out of 10 provinces have said they are not ready.

Dr. Gaind, are we ready for this?

You mentioned safeguards, and you're concerned about that. Would you comment on that?

[K. Sonu Gaind]

Thank you, Senator.

I would love to comment on it more. I'll have to be very brief, given the time.

I could go on at significant length about the lack of safeguards in response to the reassurances Dr. Gupta has provided. Among those are the lack of readiness for making the predictions I've discussed for separating suicidality. We can't.

It's even the issue of the guidance from the Canadian Psychiatric Association. That's my former association. I'm a past president of that. Their guidance has been really troubling, because it lacks evidence. It's based, again, on consensus. They said in 2023 that we were ready. They said in 2024 that we were ready, but it's a constructed consensus that most psychiatrists do not share. Most psychiatrists in the country are against expanding MAID solely for mental illness. The reason for that is not based on ideology. The reason for that is based on evidence and concern about extending these assessments to suicidal individuals who are marginalized.

[The Joint Chair, Liberal, Marcus Powlowski]

Thank you.

I'll exercise my discretion as chair to ask a very brief question.

Dr. Gupta, you seem like an excellent psychiatrist. I really like some of the things you suggested.

You talked about having to look, as an assessor, at previous medical records. You would consult other treating physicians and treating psychiatrists. You would look at the social circle and talk to them. You would look at the clinical teams. All of this is very admirable. You talked about how people should have tried other forms of treatment. You talked to even third or fourth psychiatrists.

Dr. Gaind, under the current legislation, is any of that a requirement?

[K. Sonu Gaind]

None of that is in the legislative safeguards. The groups that have looked at it and recommended expanding MAID for mental illness, including Dr. Gupta's panel, from which two members resigned, refused to recommend any additional legislative safeguards.

I will agree that most MAID assessors are diligent, but it's false to equate goodwill and predominant group competence with safeguards. They're not the same thing. Even a small group without safeguards can do a lot of damage, and that is what the concern is.

[The Joint Chair, Liberal, Marcus Powlowski]

With that, I conclude the first panel. We'll go on to the second panel, so there will be a brief pause.

We'll suspend.

[The Joint Chair, Liberal, Marcus Powlowski]

For the second hour, I'd like to welcome the two new guests.

We have Jocelyn Downie, professor emeritus, faculties of law and medicine at Dalhousie University, and Dr. Trudo Lemmens, professor and Scholl chair in health law and policy, Jackman faculty of law, University of Toronto.

Each of you will have five minutes to make your opening comments. Can we start with you, Professor Downie?

[Jocelyn Downie, Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual]

Thank you, Mr. Chair.

Good evening. Thank you for the invitation to be here.

I am Jocelyn Downie. I'm a professor emeritus in the faculties of law and medicine at Dalhousie University. I've been active in legal and ethical academic research on MAID since the early 1990s. I was a member of the legal team in Carter, and I've served on multiple expert panels and participated in the drafting of clinical guidance and regulatory standards.

With that, let's jump right in.

A barrier to accessing MAID MI-SUMC is a limit on the section 7 and section 15 charter rights of persons with mental illness. The Supreme Court of Canada held in the Carter case that a ban on MAID is unconstitutional if it prohibits access for those with a grievous and irremediable medical condition, including an illness, disease or disability, and mental illness falls within this category.

Some will say this is not true, but their arguments have been advanced in court on two occasions and roundly rejected. I invite you to read Carter, as well as paragraphs 43 to 59 of the Alberta Court of Appeal in E.F. and paragraphs 483 to 501 of the Quebec Superior Court in Truchon, both confirming that mental illness falls within the Carter ambit.

Note also that Truchon wasn't appealed because the government found it “compelling”, strongly believed it would lose and didn't want to make people suffer in the meantime.

Some will claim that things have changed sufficiently since Carter to change the conclusion that to ban MAID MI-SUMC is to breach the charter, but they have not. If anything, government data and peer-reviewed analysis—not anecdotes breathlessly reported by media and recklessly spread over social media and even presented to parliamentary committees—show that the evidence supporting the SCC's conclusion has only grown stronger. For example, the official Health Canada data on all MAID provisions since 2016 show that socio-economic vulnerabilities and marginalization are not drivers of requests for MAID.

Ontario v. G is also essential reading for the committee, as on the SCC's logic, a blanket ban on access to MAID MI-SUMC unjustifiably violates section 15 of the charter by failing to allow for individualized assessments. Therefore, the answer from a legal perspective about whether to allow MAID MI-SUMC was and remains robustly “yes”.

The next response might then be, “But this is different, because it's just a temporary exclusion and it can be justified under section 1.” This is also not true.

On metrics for justification, permissible justifications are clinical and regulatory readiness, but not political readiness. The last two Truchon extension decisions have strong wording on this.

On burden of proof, the government's extension of the exclusion clearly bears it.

On threshold, the burden is very heavy for a government seeking to continue to breach charter rights after a finding of unconstitutionality. The Department of Justice Canada itself recognizes this on its website.

As you have heard and will continue to hear, clinical readiness has been met. Based on my research, I can attest that regulatory readiness has also been met.

Consider finally the following relevant precedents.

Quebec delayed the coming into force of its MAID legislation for 18 months to implement an entire regulatory framework for MAID. The Supreme Court of Canada in Carter gave the government 16 months to put in place an entire regulatory framework for MAID. The Quebec Superior Court, in the Truchon case, gave 18 months to put in place a regime for track 2 MAID. The justification for the four-month Carter extension to the suspension of the declaration of invalidity was a federal election. For Truchon, it was an election, and more extraordinarily, a global pandemic.

Critically, in the Carter and Truchon extensions, eligible individuals could go to court for authorization to access MAID, dramatically reducing the harm of the extensions. The government even covered the applicants' costs through the later Truchon exclusions.

The MI-SUMC exclusion will have reached 72 months by March 2027, just to implement MAID MI-SUMC. There are no comparable justifications and no avenues for individuals to seek court authorization—