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
Senator, Saskatchewan, CSG
Thank you very much.
I'm going to frame my question this way, Professor Downie. Considering the decisions of Carter, Truchon and E.F.—and you've laid it out as best as you can in the time limits—and given your academic and legal experience, including in the courtrooms where these cases were litigated, what are the consequences of a government decision to deny access to MAID to those for whom mental illness is the sole underlying cause? What are the consequences for the patients, for the practitioners who are trying to serve their patients, and for the governments that, according to the courts, are in breach of the Constitution, particularly section 15?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
With regard to the impact on patients, I would encourage the committee to watch a documentary by Marc de Guerre, who talked to two people who, after the documentary, ended their lives by suicide because of the extension. They had been waiting, and they said, “We cannot wait anymore.”
What will happen if there is an extension or an exclusion is that people will die by suicide. They will go to Switzerland because they can access it there, or they will not get MAID in either way and will continue to experience enduring and intolerable suffering caused by a serious and incurable disease. They just have to have that suffering.
The consequences for the government are to end up in court. That's what keeps happening. We had to go to court to get Carter. That gave us something. It was shrunk by Parliament, so we had to go to court on Truchon to get it back out to Carter. Then Bill C-7 came along and took it away, and we had to go back out to....
You need governments to have courage and a recognition of their obligation to respect the charter. That's what the government did the last time with respect to not appealing Truchon. It spoke about it.
Senator, Saskatchewan, CSG
Could you give a quick word on the practitioners? They are doing their part. They are being trained and readied for this, and they have an obligation to patients, too.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
They do, and it puts them in a very difficult situation. I hope you will speak with some clinicians, because they are put in the position of explaining why it is that the suffering from a physical condition is considered worthy of Parliament saying, “I have a way to end it,” but suffering from a mental illness is not.
What do you think people who have a mental illness think when they read the provision in the Criminal Code that says that “a mental illness is not...an illness, disease or disability”? Clinicians have patients asking them those questions, and what are they to say? Yes, using the language of the Supreme Court of Canada...? It's cruel.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
We'll go on to Mr. Patzer. You have five minutes.
I'm sorry. I've forgotten Senator Wells. My apologies.
Senator Wells, you have three minutes.
Senator, Alberta, PSG
Thank you.
I'm going to ask some questions, perhaps as a summary of what we've been hearing so far today, and particularly of you, Professor Downie, as one of the leading legal experts on MAID in Canada.
Do you believe the current legal framework is sufficient?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes, absolutely.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Only that the exclusion gets extended, because I think that would be a breach of the charter, but keeping it as it is, no.
Senator, Alberta, PSG
Does the current framework that exists address the issue of vulnerability that we've been hearing about?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Absolutely. Look at the eligibility criteria and the procedural safeguards and the data that show it is working.
Senator, Alberta, PSG
Are there any missing regulatory components?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
No.
Senator, Alberta, PSG
Do you believe we need new regulations coming out of the discussions we're having here?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
No, because there is nothing unique about mental illness.
If you're saying they're insufficient, then you need to go back to the drawing board on MAID, so no, if you introduce mental illness, it doesn't introduce a need for new regulations.
Senator, Alberta, PSG
How would you address or respond to claims of harms to persons with disabilities?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
The first thing I'd say is that you need to listen to persons with disabilities, because the organizations are not representing the majority of persons with disabilities. We know from the studies that the majority of people with disabilities believe in track 2.
The second thing I'd say is that the harms that people were concerned about are not manifesting. People said that people with disabilities were going to access MAID because they don't have access to disability supports and services. Again, look through the Health Canada data. It's very clear that well over 90% of people who access MAID and have a disability do have access to disability supports and services, so that is a myth.
The harms that were feared are not materializing, and the harm to persons with disabilities right now is the threat to track 2.
Senator, Alberta, PSG
Fundamentally, it seems to me this is really about two things.
It's about choice. It's about choice for individuals, if they meet the assessment conditions, to choose MAID, and we shouldn't be taking away someone's choice.
Secondly, it's about trust: trust in the highly qualified medical professionals to make an accurate assessment based on their expertise and the clinical guidelines and standards of practice that the federal government has invested millions of dollars in over the last three years or so to develop with the leading experts in Canada.
Do you have comments on that?
Liberal
The Joint Chair Liberal Marcus Powlowski
You have two seconds. I would point out that although the senators have shorter times, they've consistently gone over, and as a result they've actually had proportionately far more time than the elected representatives.
Senator, Alberta, PSG
That's impossible when you have five minutes versus three minutes—
Liberal
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
Read the Wilson decision about the fundamental choice, the importance of choice about the course of your life and your death—that's Justice Bertha Wilson—and read Justice Smith in the trial decision on trust in health care providers.