Evidence of meeting #4 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 equality.
A recording is available from Parliament.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Professor Downie and others have cited the 2016 E.F. decision, but in E.F., the court—in that case the Alberta Court of Appeal—made no pronouncement on the constitutionality of a legislative response that might exclude MAID for mental illness. Is that correct?
Associate Professor, University of New Brunswick, As an Individual
As I understand E.F., it was based on asking for an exemption, which was permitted under the Carter decision. As I understand E.F., it was in relation to having a psychiatric overlay to a physical condition. In that respect, it's not a precedent for anything. It was simply asking for an exemption.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
That's right, and the court said expressly in paragraph 24, “These are not individual constitutional challenges.” They were dealing with whether or not the applicant qualified for the constitutional exemption at the time before the passage of Bill C-14.
You touched upon Truchon. Just to be clear, in that case the question before Madam Justice Baudouin was not concerning a condition of a sole underlying mental health disorder. Is that right?
Associate Professor, University of New Brunswick, As an Individual
That's right. The thing about Truchon is that in the evidence before that case, it was dealing with people who had grave, irremediable physical conditions but just couldn't meet the standard that their death was reasonably foreseeable. Obviously, that doesn't apply in the case where the sole underlying condition is mental illness.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
At paragraphs 386 and 387 of that decision, Madam Justice Baudouin said:
Neither Mr. Truchon nor Ms. Gladu has a psychiatric illness that could be related to their request for medical assistance in dying.
Therefore, the relevance of any evidence adduced by the Attorney General of Canada on the subject of people who might avail themselves of medical assistance in dying based solely on a psychiatric illness is doubtful, to say the least.
In other words, it wasn't relevant to the issue before Madam Justice Baudouin, which she was to determine.
Associate Professor, University of New Brunswick, As an Individual
That's right.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Therefore, to date, no Canadian court has specifically recognized a charter right to MAID where mental illness is a sole underlying condition. Is that right?
Associate Professor, University of New Brunswick, As an Individual
That's right.
Conservative
Liberal
Liberal
Helena Jaczek Liberal Markham—Stouffville, ON
Professor Gilbert, your work has examined MAID through a charter lens and an access-to-care lens. This evening, we've heard certain concerns that track 2, to date, has been, in some way, particularly offered to those with a disability, where social support or other interventions could mean that track 2 is, perhaps, inappropriate.
Could you tell us what the stats actually show—what the data is? I believe there are annual reports. Could you detail for us who is accessing MAID through track 2?
Prof. Daphne Gilbert
I recommend to the committee that you consider inviting Dr. James Downar and Dr. Kieran Quinn, who published an empirical study in the fall of 2025 that looked at all the data around track 2 MAID.
With respect to the question on marginalization, by every metric, MAID recipients are less marginalized than the appropriate comparator. MAID recipients are overrepresented in the highest income quartile relative to the general population of natural deaths. We understand that most MAID recipients are white and educated, and they have means.
As far as statistics on gender go, it is true that there are slightly more women than men availing themselves of track 2 MAID. That tracks with the epidemiology of populations with chronic conditions. Women are more likely to develop these conditions and less likely to die from them. It's not a purely gender-driven issue.
Liberal
Helena Jaczek Liberal Markham—Stouffville, ON
Thank you for the clarification.
Professor Sheehy made some comments in relation to international experience.
What would you recommend in terms of potential safeguards, should medical assistance in dying be available where the sole underlying condition is a mental illness? What do you see as some of those requirements?
Prof. Daphne Gilbert
I think the existing safeguards are more than adequate to deal with adding mental illness as a sole underlying condition.
I have found it very troubling today to hear MAID providers described as murderers. If there are egregious provisions happening, there should be criminal charges laid. There should be reports to the police. There has never been a criminal prosecution of a MAID provider. Similarly, they could be reported to the appropriate college. Again, we don't know of any disciplinary proceedings that have successfully resulted in any sanction for a MAID provider.
I think the existing safeguards are very strong. There are multiple criteria that have to be fulfilled, and these can accommodate MI-SUMC.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
Mr. Thériault, you have the floor for four minutes and 50 seconds.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you.
Ms. Gilbert, Quebec enacted the Act Respecting End-of-Life Care even before the Supreme Court issued the Carter ruling. Because of that decision, Quebec had to amend its original law, which had only allowed medical assistance in dying in circumstances where people were terminally ill, at the end of life.
However, it was through the Truchon and Gladu cases, as well as Judge Baudouin’s ruling, that Quebec later realized its law excluded a certain number of people and could be discriminatory. Quebec’s law has recently been amended.
In addition to its end-of-life care law, Quebec has established a commission tasked with compiling records and reviewing them as necessary. Every instance of medical assistance in dying is subject to review, if necessary.
I don’t know, and this seems to be the case in other parts of Canada, but it might be a solution for people who are concerned about how care is provided.
Professor Downie, who appeared before the committee, told us that a blanket ban targeting individuals whose only underlying health condition was a mental disorder ran counter to the Carter ruling, because it did not allow for individualized assessments.
I imagine you agree with that, don’t you?
Bloc
Luc Thériault Bloc Montcalm, QC
The professor also noted that a temporary exclusion from access to medical assistance in dying for MAID MD-SUMC constitutes a violation of sections 7 and 15 of the Canadian Charter of Rights and Freedoms and cannot be justified under section 1.
She refers, among other things, to Justice Sheehan’s decision in the Truchon case.
I will quote an excerpt:[…] the rights that are guaranteed must prevail over a legislative intent that could not be carried out within a reasonable time frame.
What she pointed out is that we are in a time frame that might seem unreasonable by constantly postponing the effective date of the law regarding medical assistance in dying.
What do you think?
Are we complying with section 1 of the charter by constantly postponing the decision?
Prof. Daphne Gilbert
My recollection of Professor Downie's testimony is that she pointed out to the committee that this has been by far and away the longest extension of a suspended remedy in charter history. It's been six years. That is an incredibly long period of time to suspend charter rights.
I know the committee is going to hear from CAMAP and FMRAC on the medical regulatory authorities' oversight on MAID, but it exists and it is robust across the country.
The G decision from 2020, which talked about individualized assessments under section 15, is a really important reminder that blanket prohibitions don't withstand charter challenges.
Bloc
Luc Thériault Bloc Montcalm, QC
In the event that committee members do not agree on the interpretation of the Carter ruling—two witnesses have already offered differing interpretations—do you believe it would be important to seek an opinion from the Supreme Court so that it may advise us on how we should interpret this decision?
Prof. Daphne Gilbert
I have no doubt that this issue will make its way to the Supreme Court of Canada. There is a charter challenge right now in Ontario to the continued exclusion of MI-SUMC. I suspect that we will get the voice of the Supreme Court weighing in on this at some point. It will be an important voice, but it can't alleviate this committee's or this government's obligation to be respectful of charter rights and do what is right for Canadians.
Liberal
Senator, Quebec (De Lorimier), ISG
Thank you, Mr. Chair.
Thank you to the witnesses.
My questions will be directed to Ms. Gilbert.
You are part of Dying With Dignity. You are one of the advisers on legal issues. In August 2024, you were quoted in a press release that announced the launch of a constitutional challenge before the Ontario Superior Court of Justice.
Here we are, a year and a half later. Where are we now in this file? Are we going to proceed soon?