Members of the committee, thank you for inviting me to join you this evening. I'm realizing that tonight, I'm the odd person out in this gathering.
My name is Daphne Gilbert. I am a full professor at the University of Ottawa, faculty of law. I have taught constitutional and criminal law for over 25 years and have researched MAID since the Carter decision. I am also vice-chair of Dying with Dignity Canada, though I appear here in my individual capacity as a law professor.
I will focus my remarks solely on MAID where mental illness is the sole underlying condition, MI-SUMC, as I understand this committee's mandate to be limited to that issue and not to all of track 2 MAID.
The exclusion of individuals who would otherwise qualify for MAID but for the fact that their grievous and irremediable condition is a mental illness is discriminatory and violates section 15 of the charter, the equality guarantee. It has been six years since the government accepted that it had to permit people with MI-SUMC to request MAID, yet it continues to delay implementation.
I will quote the Supreme Court of Canada in Attorney General v. G, a 2020 decision:
People with mental illnesses face persistent stigma and prejudicial treatment in Canadian society, which has imposed profound and widespread social, political, and legal disadvantage on them.
This exclusion adds medical disadvantage to that list.
Consider the classic image of an iceberg. The small visible tip above water represents the very limited number of individuals who would ultimately qualify for MAID MI-SUMC. Clinicians agree that only a small number of people will ever meet the stringent eligibility criteria and rigorous safeguards. This matters because one justification for continued exclusion is a speculative claim that large numbers of people will become eligible if the ban is lifted. There's no evidence to support that claim.
The much larger mass of ice beneath the surface represents the thousands of individuals harmed by the language and rationale of exclusion. They are harmed by the suggestion that because of mental illness, they lack decision-making capacity, must be protected from themselves and that their suffering is somehow less real or less serious than physical illness.
In 2026, we are reinforcing historical stigma and paternalistic assumptions, attitudes we claim to reject. Public campaigns, like Bell's Let's Talk days, encourage honest conversations about mental health, but the law continues to infantilize those with mental illness. Our commitment to equality is measured not by empty messaging but by equal legal treatment.
As affirmed in 2026 by the Supreme Court of Canada, the section 15 analysis has two steps.
First, does the law create a distinction based on an enumerated or analogous ground? Here, it clearly does. The exclusion differentiates on the basis of disability by treating those with mental illness differently from those with physical conditions.
Second, does the law impose a burden in a way that reinforces, perpetuates or exacerbates disadvantage? Again, the answer is yes. The law denies access to MAID and, in doing so, reinforces stigma and harmful stereotypes: that individuals with mental illness are incapable and in need of protection from themselves. These messages affect not only the small number who might qualify, but also the broader community, who hear them echoed in legal and policy settings like these committee sessions.
This breach of section 15 cannot be justified under section 1. The stated objectives—protecting vulnerable individuals and ensuring system readiness—do not support a blanket exclusion. Following repeated extensions, there is no clear benchmark for readiness. A constitutional violation cannot rest on an undefined and shifting standard. In contrast, those working within the MAID system have indicated that they are ready. Nor is the exclusion minimally impairing. A blanket prohibition denies any possibility of individualized assessment. At minimum, there must be a mechanism to allow individuals to be assessed, as discussed in the G case.
Finally, the exclusion produces no salutary effects. Rather than protecting vulnerable individuals, it deepens stigma and marginalization.
I remind this committee that decision-making capacity is at the heart of all MAID requests. To suggest that an entire category of competent adults should be denied a legal medical service is profoundly discriminatory.
I look forward to your questions.