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.
Liberal
Liberal
Kristina Tesser Derksen Liberal Milton East—Halton Hills South, ON
Thanks, Mr. Chair.
I want to take us back to the charter, particularly with respect to compliance, and this is for Professor Gilbert.
I'm going to rely a little bit on Morgentaler because I think there are some lines to be drawn here. In that case, Justice Wilson stated that she believed “that the framers of the Constitution” were contemplating “the freedom of the individual...to make his own choices for good or ill”. I believe those were her words. This was implying the right to make decisions about one's end of life, including through MAID, as a fundamentally personally autonomous choice.
You mentioned that you believe MAID provisions would be saved by section 1 of the charter. Is it safe for me to presume that this is based in part on the contention that although consenting to medical treatment is different from consenting to MAID, the same basic conditions apply in both situations—that is, a capacity assessment must be completed by a medical practitioner?
Prof. Daphne Gilbert
First of all, Justice Wilson in Morgentaler spoke really passionately about the fact that people should have the right to make fundamental life choices, which would include the most fundamental: when you want to die or how you want to die, if you are eligible for MAID.
As far as capacity assessments are concerned, of course people can only receive MAID if they are capable of understanding and consenting to MAID. There are additional safeguards around that in the legislation, such as that they have to be informed of all of their alternatives and that they have to have considered what else could be done for them. The practitioner has to be satisfied that they have actually seriously considered those things. That's all in the legislation.
Liberal
Kristina Tesser Derksen Liberal Milton East—Halton Hills South, ON
That's perfect. Thank you.
I'll just lead off of that.
We heard concerns from a previous witness tonight about the importance of requisite capacity in providing consent for medical decisions, particularly in accessing MAID. She represented folks with intellectual disabilities. It could be argued that consent is actually impossible in that context because those Canadians lack the intellectual capacity to understand the consequences of those decisions.
Can you comment on your understanding of the legal nexus, in the MAID context, between an intellectual disability and the ability to consent?
Prof. Daphne Gilbert
Again, I'm not a clinician, so I really can't comment on how capacity assessments are done. That is totally in the purview of medical professionals. I think that people with intellectual disabilities can sometimes have capacity. It would all depend upon the assessment of the provider.
Liberal
Kristina Tesser Derksen Liberal Milton East—Halton Hills South, ON
Thank you.
I'll yield the rest of my time.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
Mr. Thériault, you have the floor for one minute and 50 seconds.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Mr. Chair.
Ms. Gilbert, how do you explain that the history of medical assistance in dying in Canada always stems from a Supreme Court ruling before parliamentarians can finally legislate?
How can this be explained, and how do you explain it to yourself?
Prof. Daphne Gilbert
I appreciate that it's very hard to be in your position. It's very hard to be in the position of having to legislate around really complicated social issues. I'm not surprised that so many of these issues—like abortion, like MAID—ended up at the Supreme Court of Canada. I think it's very hard for you to weigh all of the conflicting constituents that you have and their different opinions. Really, it is the court's ultimate role to pronounce on charter rights.
I think, though, that the government, when it knows what the charter right is and knows what the entitlements are, should act to do that.
Bloc
Luc Thériault Bloc Montcalm, QC
Isn’t it up to legislators to make laws and to make them with the well-being of the people they represent in mind?
In that sense, isn’t it abnormal that, following the Carter ruling, we are still placing the burden on citizens—on people who are suffering—to assert their rights, and that Parliament then has very little time to discuss these issues?
Our committee will be six years old in 2027.
Is it not abnormal to place the burden on citizens?
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
Senator Dalphond, you have one minute and 50 seconds.
Senator, Quebec (De Lorimier), ISG
Thank you.
I'm coming back to this pending litigation. Was intervenor status granted to some organizations, so far?
Prof. Daphne Gilbert
No, we have not reached the state yet where we are welcoming intervenors.
I want to say one thing about that litigation in terms of the burden that we put on people. We had two plaintiffs with lived experience of severe and profound mental illness, over decades. One of those plaintiffs dropped out because the litigation was taking too long and the burden on them was too onerous. That's a very real consequence of litigation. Had we not continued the extension, then that burden would have been put on those people.
Senator, Quebec (De Lorimier), ISG
I certainly shared these comments in my dissent in the last report. I made it clear that we should refer the matter to the Supreme Court right away, just to end the suffering and to make a clear path for the people to know if they have access to it or not.
I thank all the witnesses for their presence tonight.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Senator.
Finally, we have Senator Martin for one minute and 50 seconds.
The Joint Chair Hon. Yonah Martin
That's very little time. I guess this is the last question.
I will direct it to you, Dr. Grant.
We heard that expanding MAID would “disproportionately end the lives of...women”. You can comment on that or anything else you heard, if you wish to have the final say.
Prof. Isabel Grant
Thank you.
We have to be really suspect of any federal law that is disproportionately going to result in dead women. Unless we're going to say that we're totally different from the experience in Europe or that somehow MAID for mental illness is fundamentally different from what we've already seen with track 2, we are going to end up with dead women—dead women with mental illnesses, who have a history of being marginalized and whose autonomy has been denied precisely by the medical profession.
I want to point out that there's other litigation going on in Ontario that also has individual plaintiffs who have had an enormous burden imposed on them by the existence of MAID. Both of those plaintiffs have mental illness. Both of those plaintiffs were offered MAID when what they were seeking was support to live. Both of those plaintiffs have a long history of marginalization by the medical profession.
The idea that offering death is somehow going to promote the autonomy of women with mental illness is frankly just so appalling that I don't know how to respond to it. Women with mental illness deserve access to a dignified life.
Thank you.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
I'd like to thank the witnesses for appearing.
I'd like to briefly make mention of this. Several people referred to the Wilson judgment in Morgentaler as being relevant. I think it's a very good judgment, and I urge anybody who's interested in this to read that judgment.
Let me point out that next week, on Monday and Tuesday, we have meetings on both of those days.
If there's nothing else, I adjourn the meeting.