Trudo Lemmens is a professor at the University of Toronto’s Faculty of Law.
The latest postponement of the introduction of medical assistance in dying (MAID) for Canadians for whom mental illness was the sole condition can be critiqued. But it’s better than launching a Supreme Court reference.
When the government first introduced a bill to expand MAID eligibility in 2020, it excluded mental illness as a sole basis for MAID. Its Charter statement cited the “inherent risks and complexity,” unpredictable disease progression, and other broad concerns. As MAID remains a Criminal Code exemption to prohibitions of assisted suicide and homicide, setting out additional protections for those at particular risk of death is clearly a valid criminal-law objective. Yet, a group of dogged senators led by Stan Kutcher amended the bill to allow MAID for mental illness after 18 months. The House of Commons debated and passed that amendment in one afternoon.
Have those initial Charter concerns since been invalidated? Senators who pushed from day one for broad access to MAID say we are now more than ready, based on the experts who agreed in testimony at the Special Joint Committee on Medical Assistance in Dying, and the fact that some of those experts co-authored a federal report and designed model practice standards and educational programs.
That, however, is part of the problem: a small group of ardent supporters of expansive MAID, framing it as a quasi-inherent benefit, appears to have largely directed Canada’s MAID policy. Even after two members resigned from the federal expert panel because they felt their concerns were ignored, some panel members were tasked with developing practice standards. As a result, Canadian guidance and standards primarily focus on access to, not protection against, death.
The dithering on MAID reveals the ingrained cowardice in Canadian politics
The committee and federal ministers have since consulted more broadly and realized that concerns do remain, just as Quebec did in 2022, when a provincial expert panel recommended excluding MAID for mental illness. Provincial health ministers, mental health specialists, and advocates from across Canada have conveyed their deep concern, and hundreds of written parliamentary briefs have warned about tragic consequences if MAID is further expanded when suicidal patients currently face week-long waits for access to basic mental health care. This context, in particular, highlights the tension between MAID and suicide prevention.
While experts supporting expansion acknowledge some concerns, including challenges in determining whether a mental illness is irremediable, they agree with the senators that MAID for mental illness “is a Charter right.”
But this argument turns things upside down. In 2021, MAID created a second track of eligibility for people who were not approaching a reasonably foreseeable death – but this was already based on an imagined broad constitutional right that presents access to MAID as a quasi-inherent benefit. It disregarded the fact that disability and intersecting sources of marginalization affect choice. Offering death as a solution to the suffering of Canadians with disabilities significantly deprives them of protections against suicide that others receive.
The results of our MAID regime’s promotion of access to death as a benefit, and the trivialization of death as a harm to be protected against, are increasingly clear. Less than two years after the establishment of “track two″ MAID, providers had ended already the lives of close to 700 disabled people, most of whom likely had years of life left. With staggering increases in overall MAID deaths, there are growing concerns that inadequate social and mental health care, and a failure to provide housing supports, push people to request MAID. Adding mental illness as a basis for MAID will only increase the number of people exposed to higher risks of premature death.
Some are now calling for the government to file a reference question to the Supreme Court – but this would be an ethical and legal contortion. The court would have to start from the premise that it is acceptable to expose other disabled persons to an increased risk of premature death by MAID, and then decide if persons with sole mental illness should be added to this group. Filing a reference now would starkly contrast with the government’s decision not to let the Supreme Court reconsider the Truchon decision in Quebec, which launched this expansion; if it had, it would have shown Parliament’s commitment to balancing access and equal protection of disabled persons, which the law’s initial focus on end-of-life reflected. Filing this reference would reaffirm a zeal to promote faster access to premature death.
Policy-makers now seem to at least acknowledge the issues with expanding MAID for mental illness. They should now also take seriously the mounting evidence of current risks for other disabled persons. Instead of filing a reference with a distorted premise, they should stop further expansion and muster the courage to take constitutional responsibility for law-making and address the MAID regime’s fundamental problems.