Thank you very much. Good evening. I very much appreciate the invitation to appear.
I'm a constitutional law professor at the University of New Brunswick. My teaching and research focuses on the charter, equality rights and the interaction of equality and section 7. I publish extensively in those areas.
At the outset, I want to be clear that the charter does not require extension of MAID to mental illness as a sole underlying condition. Carter does not establish that requirement and section 15 does not compel it.
I'd like to make three points. The first is that Carter does not constitutionally require the extension of MAID to mental illness. The second is that any group advancing a section 15 equality claim must demonstrate that partial decriminalization transforms an exemption from criminal liability into a benefit under federal law. This would be a novel claim with no authoritative precedent. The third is that even if that hurdle is overcome, substantive equality under section 15 does not require full decriminalization. Truchon assumes that equality requires identical treatment as between groups with disabilities. It does not.
Turning first to Carter, it was a section 7 decision grounded in causation. The claimants had to show that state action caused the deprivation of life, liberty or security of the person.
The violation of the right to life depended on the Supreme Court's acceptance that the law caused premature death. It accepted that some individuals with “grievous and irremediable” conditions would take their own lives prematurely for fear that they would be incapable of doing so when their suffering became intolerable. This “cruel choice”, in the court's words, also imposed psychological suffering.
At the point of physical incapacity, the prohibition engaged liberty and security of the person because it precluded autonomy over one's life and it prolonged suffering. Carter did not mandate the extension of MAID beyond that defined class.
The court accepted that the state has a legitimate objective in protecting vulnerable persons from being induced to commit suicide and that carefully designed limits are permissible. It says that drawing lines is justifiable through “stringent limits that are scrupulously monitored and enforced.”
I will now turn to Truchon and section 15. Truchon is often relied upon to support an equality argument, but the case is less stable doctrinally than is sometimes suggested. Section 15 is engaged when the state provides a benefit or imposes a burden unequally. Parliament is not providing MAID as a benefit. It has created a limited exemption from the criminal law. Characterizing that exemption as a benefit would be a significant and novel extension of section 15, not supported by existing Supreme Court jurisprudence, such as Auton, or any other lower court decision. Parliament, under the Criminal Code, is not providing access to MAID to anyone.
Moreover, even if the “benefit” framing is accepted, section 15 prohibits distinctions that are substantively discriminatory—those based on prejudice, stereotyping or that perpetuate disadvantage. Here the distinction reflects the recognized limits of medical knowledge, the inability to reliably determine irremediability in mental illness and the difficulty of separating suicidality from MAID requests. Treating those differences as material is not stereotyping or perpetuating disadvantage. Section 15 requires evidence about the claimant group, and differential treatment that corresponds to their circumstances is not discriminatory—