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.
Prof. Daphne Gilbert
I would love it if someone from the government would let me know.
We are expecting the government's response materials at the end of April. We have filed our claim and we have filed all of our expert opinions. We're just waiting for the Department of Justice to catch up.
Senator, Quebec (De Lorimier), ISG
I see.
Is there court management for that file?
Prof. Daphne Gilbert
There is, and we hope that in the next week, we'll have those materials.
Senator, Quebec (De Lorimier), ISG
Is there a date scheduled for the hearing?
Prof. Daphne Gilbert
No. It's my understanding that Ontario is incredibly backed up in its court dates. We're not anticipating a date until sometime in 2028.
Senator, Quebec (De Lorimier), ISG
I understand that the preferable route would be to go straight to the Supreme Court on a reference case.
Prof. Daphne Gilbert
That would be an option. I'm not sure it's necessary, because I think the government—
Prof. Daphne Gilbert
Eventually...but I also think the government can make a decision to lift the exclusion in March. That would be the right thing to do, instead of forcing people to go to court.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
Senator Martin, you have two minutes and 50 seconds.
The Joint Chair Hon. Yonah Martin
Thank you.
This question is for Dr. Froc.
We've heard deep expert disagreement about irremediability and suicidality in regard to mental illnesses. If the core criteria themselves are not reliably assessable, is Parliament entitled to keep the exclusion in place under the charter?
Associate Professor, University of New Brunswick, As an Individual
Yes. Essentially, what section 15 says is that sometimes differential treatment is required for equality.
Now, we have various unresolved issues with respect to mental illness, as you've pointed out, and equality doesn't mean that you have to ignore those. If you, as a committee and a Parliament, decide that mental illness as the sole underlying condition presents special problems of prognosis, irremediability and suicidality, then drawing a distinction on that basis is not necessarily going to be found to be discriminatory by a court.
In fact, as you've heard, there's a competing equality consideration that you've heard from disability rights organizations that say removing criminal protection from this group rests on an ableist principle that their lives are not worth living and that death is a better option for them. I commend Dr. Isabel Grant's section 15 article about that very thing.
What I want to emphasize, however, and what my colleague and friend, Dr. Gilbert, neglected to talk about, is that the very first thing you have to prove under a section 15 analysis is that there's a benefit under law. You don't even get to the equality test, the two-part equality test, unless you can show that, and the variation through the provinces.... We have Alberta now passing its own legislation. Quebec has its own legislation.
Provinces are the ones that provide MAID. Even accepting that MAID provision is a benefit, this is not under the federal law. The federal law is only granting an exemption to criminalization. Therefore, section 15 may not even apply here.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Professor.
Next, we have Senator Loffreda for two minutes and 50 seconds.
Senator, Quebec (Shawinigan), ISG
Thank you, Mr. Chair.
Thank you to all our panellists for being here. My question is for Professor Gilbert.
Your work is focused extensively on equality rights and removing discriminatory barriers in access to MAID.
How do you reconcile the expansion of access based on equality rights with the obligation of the state or the government to protect individuals who may be vulnerable due to mental illness, particularly where capacity, irremediability and external pressures are difficult to assess?
Where should Parliament draw the line between expanding rights and ensuring sufficient safeguards?
Prof. Daphne Gilbert
I would defer to clinicians with respect to how they go about making their assessments in terms of the medical process for that, but the legal safeguards are very strong. It's not only that you have the condition. It's not only that you have the mental illness. It has to be a serious mental illness. It has to have enduring physical or psychological suffering that is intolerable to them. The word “enduring” says to me a length of time, a lengthy period of time. You have to be in an advanced state of irreversible decline in capability.
These are all qualifiers to the definition of what a grievous and irremediable condition is. It's not just that you have the mental illness or a disability. It's that you have all of these other qualifiers that make it a much more serious condition, which I then trust our clinicians to be able to assess.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you.
Next, we have Senator Wallin for two minutes and 50 seconds.
Senator, Saskatchewan, CSG
Thank you.
Professor Gilbert, you are indeed one out of nine or 10 witnesses tonight on the other side of the issue. The testimony has been quite imbalanced on that score. I'd like to hear from you as to what you actually think the limits now are on the federal government. You've talked about six-year delays: that the government could simply move to lift this restriction and they would be in compliance with the law.
The second part of my question is about the provinces and where they stand, because we are told that they have the power to make the rules and the access much more restrictive, but they can't make it wider; they can't make something illegal legal.
Could you answer on where the feds are and where the provinces are?
Thank you.
Prof. Daphne Gilbert
I do think that the task for the government is simple, and that is to lift the exclusion. As I said, the government has already accepted that it eventually has to include MI-SUMC. A six-year delay was unnecessary, but that's what we have and we shouldn't add to it in any way.
As far as the provinces are concerned, the provinces are also required to be charter-compliant. In terms of whatever restrictions provinces put into place with respect to MAID, they will have to make sure that they come, very clearly, within the health authority that the provinces have and that they're not a colourable attempt to regulate in criminal law. There will be charter challenges, I'm sure, in the provinces, which is why it would be preferable, in my opinion, if the federal government had a strong message around where it stands on MI-SUMC.
Senator, Saskatchewan, CSG
Does that require a change to the Criminal Code or a continued exemption from it?
Prof. Daphne Gilbert
All it would require is to lift the sunset clause to lift the exemption, and then mental illness would be part of track 2, with all of the safeguards inherent in track 2.
Senator, Saskatchewan, CSG
Do you think we are going to have to go through this process through the courts in 10 provinces and three territories?
Prof. Daphne Gilbert
We certainly have it already happening in Ontario, and I would imagine it will follow suit across the country if we don't lift the exclusion.