Debates of Oct. 19th, 2020

Criminal Code

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Madam Speaker, across Canada palliative care is inconsistent. We are looking for some guidelines from the federal government on what palliative care should look like, with standardization across the country. We want funding to be dedicated to it. We also want the conscience rights of folks and organizations working in health care to be protected. In the Delta Hospice Society case, for example, the provincial health authority is forcing its ideology upon a hospice that is quite convinced that MAID has no place whatsoever in hospice care.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, I am delighted to speak today to Bill C-7, an act to amend the Criminal Code, medical assistance in dying. Its proposed Criminal Code amendments to the medical assistance in dying regime are a true reflection of the value we as Canadians ascribe to individual autonomy.

I wish today to address a specific aspect of Bill C-7, which is the exclusion from eligibility for medical assistance in dying, or MAID, of those whose sole underlying medical condition is a mental illness. This is an aspect of the bill that has already attracted some attention, and I am grateful for the opportunity to make these remarks to provide context around the government's choice to not extend medical assistance in dying in this area at this time.

The government has heard from various sources that there are unique risks and complexities associated with medical assistance in dying on the basis of mental illness alone. These include the report of the Council of Canadian Academies' expert panel on medical assistance in dying where a mental disorder is the sole underlying medical condition, as well as the experts the ministers consulted in recent round tables on medical assistance in dying.

In this Canadian-made context, very specific concerns have been raised in relation to mental illness, those illnesses that affect how a person perceives themselves, their environment, their place within it and sometimes their future. The first main concern is that the trajectory of mental illnesses is harder to predict than that of other illnesses. Unlike some dementia and intellectual disabilities, the underlying causes of mental illness remain largely unknown. Mental illnesses can spontaneously remit or can be difficult to treat for years until one treatment or one social intervention works and improves quality of life, reducing that person's suffering.

For example, we learned from the Council of Canadian Academies' report that an important percentage of persons living with borderline personality disorder will see their symptoms go away as they age, and some people with problematic substance use disorders also spontaneously remit. Experts disagreed on whether a mental illness can ever truly be considered incurable. Indeed, the Canadian Mental Health Association has indicated, “CMHA does not believe that mental illnesses are irremediable, though they may be grievous or unbearable [and] there is always the hope of recovery.”

A second main area of concern is that the desire to die can be a symptom of some mental illnesses. Here I address specifically the concerns just raised by the member for Peace River—Westlock around suicide. I acknowledge and recognize his sincere concern. Having a mental illness is, indeed, a significant risk factor for suicide.

This underscores the difficulty of assessing the voluntariness of a MAID request from a person who may be experiencing a desire to die as a symptom of mental illness. Some practitioners also raised the concern that an expanded MAID regime could negatively impact suicide prevention efforts if MAID were a legal option in response to suffering caused by mental illness alone, both at the level of public messaging and at the individual clinical level.

The Council of Canadian Academies' expert panel also noted the particularly troubling situation of suicide rates in indigenous populations. This is an issue that concerns us all deeply. It was the expert panel's view that the potential impact of MAID where a mental illness is a sole underlying condition, if any, on suicide prevention efforts must be explored more deeply with indigenous people.

By contrast, there are other conditions affecting the brain that do not raise these same concerns. For example, the trajectory of cognitive impairments such as Alzheimer's, Huntington's Disease or other neurodegenerative diseases is more easily predicted, in large part because the underlying pathology is better understood.

Intellectual disabilities are a permanent state and there are no concerns with an unpredictable illness trajectory or a person's perception of their place in the world being affected. Indeed, many do not consider such conditions to be a mental illness or mental disorder. While they may raise other concerns, these are likely more properly addressed by assessments of decision-making capacity.

On the other hand, those who live with mental illness can experience unimaginable suffering and even physical pain. There is no question that the suffering that some with mental illness endure can be intolerable. Some who suffer from both physical and mental illness have said that, if they were able to choose, they would easily choose to endure the physical pain if the mental anguish could end. It is understandable that there is no consensus on this issue.

The group of experts the Council of Canadian Academies recruited could not agree on several fundamental questions, including whether it is possible to have a valid and reliable method of distinguishing between suicide and an autonomous decision for medical assistance in dying where a mental illness is the sole underlying medical condition.

A subset of the Council of Canadian Academies' expert panel, the Halifax group, recently recommended that the MAID regime should not exclude persons whose sole underlying medical condition is a mental illness. Instead, there should be a legislative requirement that the decision to die be well considered to ensure that a MAID request is well thought out and not impulsive. Others say that to exclude those with mental illness only perpetuates stigma and discrimination.

On the other hand, another subset of the Council of Canadian Academies' experts, the expert advisory group on MAID, recommended that the MAID regime acknowledge that, at this time, it is not possible to determine that a mental illness is irremediable or that a state of decline due to a mental illness is irreversible. Therefore, persons whose sole underlying medical condition is a mental illness could not fulfill the current MAID eligibility requirements.

Given these diametrically opposed points of view from experts, it would not be prudent to permit eligibility for medical assistance in dying where a mental illness is the sole underlying medical condition at this time without more study and deliberation.

We, as legislators, are not experts in mental illness. Let us, instead, take the time to listen closely to what experts have to say on such an important topic, where the consequences of a decision are irreversible.

The parliamentary review will provide an opportunity to hear from experts and others, and allow parliamentarians to carefully consider, without the time pressure of responding to the Truchon decision, whether and how medical assistance in dying could safely be extended to persons whose sole underlying medical condition is a mental illness.

The government understands very well that mental illnesses can and does cause intolerable suffering. By excluding persons whose sole underlying medical condition is a mental illness, we are not seeking to send a message that this suffering is lesser, that persons struggling with a mental illness cannot make decisions for themselves, or that their autonomy to choose when and how to die matters less.

Instead, we are taking a pause and acknowledging that this very complicated question needs more time, careful consideration and requires us to proceed prudently. The Province of Quebec is adopting a similar approach, though not through legislative amendments. I think this is wise, and we will be paying close attention to the consultations taking place in that province as well.

[Eric Melillo, Conservative, Kenora, ON]

Madam Speaker, the member mentioned mental illness quite a bit, however, he did not go into a lot of detail.

Does the member believe that if someone's sole underlying condition is mental illness, they should be able to receive MAID?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, I thank the member for the question, although I think that was the full focus of my speech, the contention that people whose sole medical condition is a mental illness should not be eligible for MAID at this time.

We absolutely need to consider this. It is a very complex issue. We need to consider it much more thoroughly than we have the ability or capacity to do at this time in response to the Truchon decision.

I would refer the member to my speech. We will happily consider the matter very rigorously as we go forward.

[Louise Chabot, Bloc, Thérèse-De Blainville, QC]

Madam Speaker, my Liberal colleague's position is quite fair. We in the Bloc Québécois also agree that those whose sole medical condition is a mental illness should not be included in this bill.

This is such a sensitive matter, I think it is important to send a clear message that we are capable of moving forward in our reflection.

We must not sweep this under the rug because that would be dangerous, as my colleague, the member for Montcalm, has already said. We need to be able to get ahead of this, rather than waiting for the courts to tell us what to do.

Aside from looking at what Quebec is doing, I would like to hear my colleague's thoughts on how we too can start proactively reflecting on this.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, we know that part of the original legislation for medical assistance in dying provided for a review at the five-year mark, and we are coming up to that time. It is very important we exercise that opportunity to look deeply into questions of this kind and canvass them very thoroughly, because it is, as the member noted, a very serious and delicate question. It is very complex.

We need to examine all aspects of it, as well as the other aspects of medical assistance in dying, to make sure that as we move forward we can adapt and move forward correctly on this very important bill.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, I found this was a very challenging speech. I appreciate the member's thoughtfulness in approaching the issue, which this bill does not touch. It is important to confirm for Canadians that, in looking at the new version and the amendments, mental illness is not to be considered an illness within the context of medical assistance in dying.

Does the member think that we will evolve our understanding of certain kinds of mental illness? It seems to me that he is suggesting that we may in fact revisit this topic in the future.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, yes, I absolutely believe the proper place to deal with this question is during the more fulsome review that should be forthcoming. It is certainly my understanding that mental illness, as a sole underlying factor, would exclude a person from the regime of medical assistance in dying.

[Tom Kmiec, Conservative, Calgary Shepard, AB]

Madam Speaker, I was glad that the member brought up mental health conditions. He was very attentive to the language being proposed in this legislation and how we would deal with it going forward. This piece of legislation goes much further than Justice Baudouin mentioned in her judicial decision where she struck down section 241.2(2)(d) specifically on death being reasonably foreseeable. I do not have a question for the member. I just want to bring this up and hear his commentary on it.

“Reasonably foreseeable” was something I criticized in the last Parliament when this was being debated. I could foresee this exact situation in which different reasonable people could interpret it in very different ways. We already see this going on all over the country. Different provinces have interpreted it differently in their health systems. I want to hear the member's commentary on that.

In this debate so far, people have mentioned incurable diseases. The minister mentioned it as well. Three of my living kids have an incurable disease called Alport syndrome. It leads to a chronic kidney condition, and in the case of males, it will eventually require a kidney transplant. In most cases it is also associated with the underlying risk of depression and social isolation. It is incurable today. That does not mean it will be incurable tomorrow.

Diseases change and their statuses change. Things that were incurable 100 years ago and were considered lifelong conditions change over time as medical technology catches up. Our knowledge matches the necessity of the time we live in. That is my commentary on the member's speech.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, my understanding on this bill regarding a trajectory for an immediately foreseeable death is that, in some cases, the requirement has been reduced, but in other cases, it remains in place. It depends on the nature of the person's underlying condition.

I certainly look forward to what I am sure will be a robust debate on medical assistance in dying when the review happens. I had the honour to participate on the Standing Committee on Justice and Human Rights when the original bill was brought forward. I certainly recognize some of the questions we are dealing with now we also dealt with then, and we did the best we could. It is very helpful that in light of experience and court decisions, we can review those decisions. It is a great opportunity, as we move forward, to embrace fully the upcoming review.

[Martin Shields, Conservative, Bow River, AB]

Madam Speaker, I very much appreciate the commentary that I have heard from my colleagues about this very significant issue today.

One of the things I remember doing in a past life is working with doctors on “do not resuscitate” orders. It became very difficult for doctors, whose oath it is to save lives, to have this type of discussion. They would do anything to get out of a “do not resuscitate” order. They did not want to touch it or undo it, because they were ending up with all sorts of complications with family members and relatives. All sorts of different things would happen with this type of situation.

Does my hon. colleague feel the legislation would protect mental health with what is basically a “do not resuscitate” order in a different language?

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Madam Speaker, I would like to first note that medical assistance in dying and a “do not resuscitate” order are fundamentally vastly different concepts.

In any event, I believe the checks and balances that are currently in the legislation around mental illness will prevail as we go forward, because this bill would not extend medical assistance in dying to people whose sole underlying condition is mental illness. That is an important distinction and it is a very important one to consider fully and robustly as we go forward. I refer all members to the opportunity that will present itself as we review the totality of the medical assistance in dying regime at its legislated juncture.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, it is a real pleasure for me to be joining the debate today, from my riding, on Bill C-7. I find myself in a unique position because, having given a speech on this very same bill earlier this year, I see we now find ourselves still at second reading for what, I would argue, is absolutely the most important piece of legislation we have before us at this time.

I was also one of the members of Parliament who had the honour of participating in the previous debate on Bill C-14 during the 42nd Parliament. I can remember very much the debates that went on in 2016 and the amount of attention that was given to that piece of legislation. We had an expert committee. We had a special joint committee. There were many hours spent, both in the House of Commons and at the Standing Committee on Justice and Human Rights, on that important piece of legislation because it made a monumental amendment to the Criminal Code in recognition of a very important Supreme Court ruling that forced Parliament to finally take the necessary action.

I remember, during that time, we in the New Democratic caucus ultimately voted against Bill C-14, but we always took the time to explain to people that we were ultimately supportive of what the overall aims of the bill were. Our major problem of the time was that the bill was too restrictive. I remember very well in 2016 referencing a particular section of the bill that I knew would be challenged by the court. Lo and behold, here we are in the year 2020, and we are revisiting that problematic section and having to fix a mistake that was made very clearly four years ago.

It is good to see Bill C-7, and it is good to see that we are complying with challenges that were made before the courts, this time coming in response to the Truchon decision by the Superior Court of Quebec. I know that we are operating under quite a tight deadline. That being said, I still think Parliament has to do a full job on this bill. As parliamentarians, whether we support the legislation, have problems with it or are opposed to it, we owe it to the people of Canada to give this debate as full a discussion and time as Bill C-14 had.

At this time, in particular for the benefit of the people of Cowichan—Malahat—Langford, it is important to underline why we are here discussing this. It really centres on the Charter of Rights and Freedoms, notably sections 7 and 15.

I am increasingly seeing section 7 as probably the most important part of the charter or one of the most important parts, because so many cases seem to be coming forward that directly reference section 7. I know it it is open to interpretation, but if we go along with successive court rulings, my own personal view on the subject is that it is a very important section because it is ultimately making the case that every person in Canada has the right to autonomy over their own body. That is why it is such an important section. If we truly believe in the rights of individuals to make decisions for themselves over what goes on with their own bodies, section 7 is incredibly important. It is really life, liberty and security of the person. That is the part that has to be underlined.

We also have to mention section 15 of the Charter of Rights and Freedoms, which guarantees quality before and under the law and makes sure people are free from discrimination. Why those two sections have such an important bearing in this case is that this bill is trying to make sure people have the right to say what goes on with their own bodies and that in making that decision they are not going to be discriminated against.

I have been listening to the debates on Bill C-7, both from the previous week and today. I acknowledge that many members are bringing forward some concerns with the bill, and I understand and want to validate those concerns. I do not believe we have to make the debate on Bill C-7 an overly partisan issue. That is why I made the comment at the beginning that it is important that all members of Parliament, no matter what party they belong to, be given the chance to fully air their views.

I believe the bill passes muster at second reading and deserves a vote of confidence at this stage of debate, because if there are particular sections of the bill that need further attention, that work is best done at the Standing Committee on Justice and Human Rights.

I fully understand that many members have raised concerns about the removal of safeguards. I have heard many members talk about the state of palliative care in Canada, whether there is enough being done with suicide prevention and so on, and I am very sympathetic to those. I think every member of Parliament, no matter what part of the country we are fortunate enough to represent, can relate to those concerns. We can relate to the concerns that we have received through email correspondence, letters, phone calls and speaking with our constituents face to face.

I am lucky enough to have a hospice undergoing major construction right now. There is a new hospice being built in the Cowichan Valley. I am really glad to see that the level of palliative care in my home riding is going to be significantly better than it was, but of course more can always be done.

Ultimately what is guiding me in this is that it is quite impossible for me, as a member of Parliament who is lucky enough to have his health and not have a grievous and irremediable medical condition, to really understand the level of suffering some individuals in Canada go through. When we are talking about the bill, the struggle we have before us is to not subject other people to our own values, whether those are guided by religious beliefs or the way we were raised and so on. It is quite impossible for people who are healthy and lucky enough to have all of their faculties to understand what the day-to-day life existence is of people who are suffering from one of these incurable and irremediable medical conditions.

Therefore, what is guiding me and members of the New Democratic caucus is an overall goal of trying to ease that suffering, to respect those people's section 7 rights and to understand that they should have the ability to live their lives in dignity and make a determination as to how they want to exit this world. I know it is an uncomfortable debate for many people to have, but that is what is going to be guiding me through these deliberations. I hope it is something all members can take note of.

Following on the speech my colleague, the member for Esquimalt—Saanich—Sooke, gave the other day concerning the legislative review that was part of the former Bill C-14, I want to draw the attention of members to the fact that this was a requirement of Bill C-14. The member for Esquimalt—Saanich—Sooke has put forward a proposal through his private member's motion, Motion No. 51, that will establish a special committee to look at how the legislation is doing. That is something Parliament can easily do while we are deliberating the provisions of Bill C-7. The creation of such a special committee to look at how Bill C-14 has been enacted over the last four years is really important.

This goes back to my first point that, yes we are operating under deadlines, yes we have had people waiting for some time, but, ultimately, it is critically important that we let Parliament deliberate this issue to the fullest extent possible.

With that, I conclude my remarks and look forward to any questions my colleagues may have.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Madam Speaker, I think it is important for us to recognize that, at times, inside the chamber some very difficult debates take place. However, the importance of this legislation cannot be underestimated. Over the last number of years, through consultation, through a court decision, we have come to this point, and I think we are on the right track.

The member made reference to palliative care, and a number of members have made reference to the importance of palliative care. I wonder if he could provide some further thoughts in terms of how the federal government's role in palliative care could make a difference in terms of quality of life for seniors across the country.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, I will first acknowledge that the delivery of health care services does fall under provincial jurisdiction, but that being said, I have always been an advocate for a strong, federal leadership role in health. After all, we do have some control over health policy through the Canada Health Act.

The real opportunity for the federal government is to make sure that every part of Canada, no matter what province someone finds themselves residing in, has access to the same kinds of standards nationwide. I think that is the real strength of the federal government. It is to make sure that someone living in Prince Edward Island can access the same level of care as someone in my beautiful province of British Columbia.

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I certainly appreciated what the member had to say, and I am especially excited to hear that he has a new hospice being built in his riding. However, I am sure he is aware that 70% of Canadians have no access to palliative care right now. It is contravening in my mind to think that we are somehow saying to people that they have this choice and here is another choice, but, truthfully, one of them does not exist.

As well, I am sure the member is aware that the Delta Hospice has lost its funding and is losing the ability to run the hospice on the basis that the government has said that it must provide euthanasia along with palliative care, yet the Canadian Society for Palliative Care Physicians has indicated that these are antithetical and totally separate. I am wondering if he is aware of what is going to be happening with the hospice that he just mentioned being built in his own riding.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, I have been very fortunate to have a good working relationship with the team that has been behind the Cowichan Hospice over the last number of years. Of course, our community is absolutely overjoyed to see the project moving ahead and seeing that it is going to be such an important part of going forward.

In the 42nd Parliament, the House passed a motion expressing that more palliative care was needed. However, when it comes to the difficult decisions that are made over where the funding goes, I would draw the member back to the importance of individual rights as outlined under section 7. Ultimately, our focus needs to be on patients and ending unnecessary suffering, which is why I drew such importance to section 7 when it comes to these important decisions.

[Alexis Brunelle-Duceppe, Bloc, Lac-Saint-Jean, QC]

Mr. Speaker, I want to thank my colleague for his speech. I listened closely and he was sensitive and respectful of all the ways to look at this bill and of all the MPs who might be opposed to it. I think that is the way to approach this type of issue.

We experienced that in Quebec City. The leadership of Véronique Hivon led to a multi-partisan consensus at the National Assembly, resulting in smooth passage of the bill for the good of our constituents.

We know that we are taking a step in the right direction with this bill. My hon. colleague and his party think that we should go further. How much further does he think we should go?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Mr. Speaker, I do not want to presuppose the work that is going to be done at committee and that is why I placed such important emphasis in my remarks about getting this bill to committee. The committee study of this bill has to be very detailed and there has to be a very broad cross-section of witnesses to inform our work as parliamentarians. I am sure there will be quite an extensive list of witnesses who wish to speak to this bill. I hope members of the committee will take note of what is heard at committee, deliberate in an appropriate manner and report the bill back, something that reflects the importance of all of the deliberations.

Business of the House

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Mr. Speaker, there have been discussions among the parties and if you seek it, I believe you would find unanimous consent for the following motion. I move:

That, notwithstanding any Standing Order or usual practice of the House, during the debate tonight pursuant to Standing Order 52, no quorum calls or dilatory motions shall be received by the Chair.

[The Deputy Speaker, Conservative, Bruce Stanton]

Are there any objections to what the hon. member has proposed? Hearing none, I declare the motion carried.

(Motion agreed to)

The House resumed consideration of the motion that Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), be read the second time and referred to a committee.

Criminal Code

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, I apologize in advance if there is noise in the background; it is either traffic or my kids, so I have chosen traffic.

I want to start first by speaking to what is at stake with Bill C-7 and with the medical assistance in dying framework overall. What is at stake fundamentally is, first, alleviating intolerable, cruel suffering. The Supreme Court and other courts have spoken about the cruel choice that individuals face in the circumstance where they have a sound mind, they are of capacity and can make these decisions themselves, where they are suffering from an illness that is not going to go away and when they are suffering in an intolerable way. Forcing that suffering upon individuals is cruel and we have to be cognizant of the fact that this is first and foremost about alleviating suffering, but it is about alleviating suffering within the context of empowering and respecting one's personal autonomy.

This is fundamentally about individual rights, and our job fundamentally is to respect those individual rights, to protect those individual rights, to ensure that we end suffering in the course of protecting those individual rights and to make sure that we fulfill the promise of section 7 as it has been interpreted and upheld by our courts, not only in the unanimous Carter decision by the Supreme Court, but also by other courts, like the Alberta Court of Appeal and more.

Now, this bill is important, because it addresses a long-standing concern with Bill C-14. It addresses the concern that we had not answered the call from the Supreme Court adequately. We had added an additional criterion unnecessarily. We had basically said that if people are suffering intolerably and they can absolutely make this choice for themselves, they have capacity, and they have an irremediable condition, an effectively incurable illness, they cannot access this regime if they are not near the end of life or there is not path dependency, but they know the trajectory they are on, even if they are already intolerably suffering.

That, obviously, was unconstitutional. The courts determined that to be so. The government rightly opted not to appeal that decision, and here we are.

Importantly, we have actually gone beyond what the court has mandated in pursuit of individual rights and respect for our charter, as we have said in the case of Audrey Parker, a woman who chose to end her life earlier than she had wanted to. She wanted to get through the holiday season, but she also did not want to lose capacity and then lose the option. She did not want to lose ability to end her life and her suffering. She did not want to lose the possibility of death with dignity, so she chose to end her life before she wanted to. Thankfully, we have actually gone above and beyond what the court has mandated us to do, and we have provided one form of advance request to ensure that individuals, like in Audrey's case, do not end their life before they would like to.

This bill, on those two fronts, is positive. There are some challenges. That is not going to stop me from supporting this legislation at second reading, but it does give one pause. I think we, as parliamentarians, have to be very careful about adding additional exclusions to accessing the MAID regime. That is what this bill would do, unfortunately. I have heard others speak to the issue of mental illness, and there are reasons to proceed cautiously, but there are not good reasons for blanket exclusions. In fact, we potentially render the bill unconstitutional with blanket exclusions, just as we did with exclusions in Bill C-14.

I hope at committee there is expert testimony on this piece, and I hope we get this right. I will give an example specifically on mental illness. In 2016, there was a case at the Alberta Court of Appeal. A woman, identified as E.F., had capacity, she was suffering intolerably, it was irremediable, she had consulted with her family and she had made the decision to end her life. She was able to do so, thankfully, because of the Alberta Court of Appeal applying the Carter decision by the Supreme Court. If the federal justice department had gotten its way in that case, it would have read down Carter to mean only terminal illness. Of course, they said that is not the case. Then we saw, through Bill C-14, that our government tried to impose that kind of criteria, and the court subsequently struck it down. The justice department lost that leg of the argument.

Then, in E.F., they put forward the argument that it could not be an underlying psychiatric condition on its own, but that is exactly what E.F.'s was, an underlying psychiatric condition. The court said that this underlying psychiatric condition, which manifested itself in great significant pain in the documented evidence, did not affect her capacity to make a decision. She was of sound mind.

In E.F., the Alberta Court of Appeal went beyond that. As to the consideration whether MAID should be available to people with mental illness as their sole underlying condition, the Alberta Court of Appeal, in E.F., said that the Supreme Court, in Carter, had canvassed this conversation, this discussion and this concern. Unanimously, they had determined that it was not an additional exclusion. It was not a factor to exclude, and not an additional criterion for eligibility, for those with mental illnesses and those with physical illnesses, so long as they meet the specific criterion of an irremediable condition of intolerable suffering and that they have capacity. It may be that one is depressed, or it may be that one is suffering from a mental health issue such that it impinges upon one's capacity to consent, but in other cases it clearly does not. In E.F., it did not. The justice lawyers lost that case, yet here we are.

In Bill C-14, the government added an additional criterion of close-to-terminal illness and reasonably foreseeable death, and it was struck down. Here, the justice department is adding that second argument from E.F. that it already lost in the courts, and is adding a blanket exclusion for mental illness. As a matter of constitutionality, I would say that if this excludes the case of E.F., which it does, then it creates a ready constitutional challenge. I will be reading the Charter statement from the justice department very closely. I am not suggesting that we do not proceed cautiously, but a blanket exclusion on mental health, when there is a case like E.F. before the court, is likely to render this law unconstitutional, and that has to be addressed by the committee.

The second piece I want to flag is the two tracks. If one's death is reasonably foreseeable, then there is no additional track. There is not even a 10-day waiting period. That 10-day waiting period has been waived, although there was not great concern even with that 10-day waiting period. There is this dual track now, if one's death is not reasonably foreseeable, where one waits 90 days. This is what we are telling people in those circumstances. I have spoken to family members who are affected by this, and they are absolutely challenged by these circumstances when one is already intolerably suffering: They are suffering from a condition that is not going to go away, and they are making this decision themselves, having capacity. If we respect personal autonomy at all, surely a fundamental life decision like this is one that we have to respect, and we are telling these individuals that they have to wait another 90 days, and not just suffer but suffer intolerably for another 90 days. It is inexplicable that we are asking people to suffer intolerably for that length of time. Those are the two specific issues that need to be addressed at committee in a serious way in order to make this bill not only constitutional, but to make it the best bill that it can be.

I wish we had dealt with this last item, because the idea of constantly revisiting this conversation instead of just getting it right for Canadians in need is frustrating. I mentioned Audrey Parker, and we are addressing one type of advance request. However, I do wish that, in the course of this legislation, we had answered the second type of advance request, in which an individual has been diagnosed and is not yet suffering intolerably, but that future is not so far away. Those individuals should also be in a place where they can make an advance request, if we are to respect their autonomy and respect their wishes.

I just wish politics did not get in the way. That is what this is. This bill is a cautionary step. It does not go as far as it could because of politics. I know Conservative members will say it goes too far and others will say we have to be concerned about vulnerable Canadians. We know we can protect vulnerable Canadians and respect people's individual choices at the same time, and I wish politics did not get in the way of alleviating suffering. I wish politics did not get in the way of respecting and protecting individual rights. We like to say we are the party of the Charter. I wish we carried through that promise and demanded greater respect for individual rights in the course of Bill C-7.

[Colin Carrie, Conservative, Oshawa, ON]

Mr. Speaker, I have been getting phone calls basically on both sides of the issue. I am having some people, as our colleague said, saying it is not going far enough. Other people are saying that it is going way too far.

I would like to talk about one of my constituents, Carol, who had a very respectful conversation with me. She totally respects the rights of physicians who do not want to participate, and people who do not want assistance in death. However, she has some concerns about advance directives, and my colleague touched on this. His comment at the end was very important. He said it is important that we get it right.

As far as advance directives, does the member actually think that this piece of legislation in front of us today addresses those, and does he feel that it is still supportable?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, it is supportable, particularly at second reading. The Council of Canadian Academies identified three kinds of advance requests. One is as in the case of Audrey Parker, which I mentioned, where someone not only is diagnosed but is already suffering intolerably. This bill would address that issue, and I am glad that it would.

The second issue, which I think is easy to address and has been recommended up and down by every expert who has looked at this, is when one has already been diagnosed but is not yet subject to intolerable suffering. We ought to provide an advance request for that as well. We could address it with sunset clauses if folks are concerned.

The third issue is when someone has not yet been diagnosed. I would argue that we could probably get there, but I think, at a minimum, we should address the second advance request where someone has already been diagnosed, but is not yet suffering intolerably. That would have been a relatively straightforward one to address. Given the time period we have had, especially in the course of COVID, I wish this had been better addressed in this bill, as well.