Official Hansard
Madam Speaker, my remarks today seek to contribute to the discussion we have had in this House since 2016 regarding medical assistance in dying, commonly referred to as MAID, and particularly with respect to Bill C-41, the MAID safeguards act, which proposes to amend the Criminal Code and make two important updates. The first one is to end the expansion of MAID for mental illness as a sole condition, and the second is to allow Canadians to request MAID in advance for a time later in an illness. MAID is a controversial topic, and it has generated much constitutional debate. For all the nuances, though, the main arguments are divided into two general opinions. From one perspective, providing legal access to MAID enhances the personal autonomy and dignity of people with serious illnesses, giving them control over the manner of their death. From another perspective, it could be a precarious medical advancement that could impact the lives of people who may already be vulnerable. This legislation would provide safeguards so that all Canadians can be assured of their rights and protections, specifically with respect to MAID for mental illness and MAID for advance requests. Regarding the first change in Bill C-41, MAID for mental illness, MAID will not be available for those suffering with mental illness as a sole condition. The planned expansion for MAID to those with mental illness as a sole condition has been delayed twice to allow more time to consider questions around readiness and safeguards from the provinces and territories. Most recently, a parliamentary committee made up of senators and MPs from different parties studied the issue, heard from experts and stakeholders and recommended that the expansion for mental illness not move ahead. I was a member of that committee, and the result of extensive discussions found that we cannot be assured that the provinces and territories are ready to safely and consistently assess and provide MAID for Canadians with mental illness as their sole condition. I will say that there was not necessarily consensus around the committee on all underlying issues and definitions, and that just indicates the variety of perspectives that were considered. Without legislative action, the current exclusion for mental illness would expire on March 17, 2027, and this would have allowed MAID to be provided to eligible individuals on the basis of mental illness only. Given the lack of clinical consensus, Bill C-41 takes a precautionary approach and would maintain the exclusion. I will make an important point here. Several people have contacted my office about this. The eligibility for people with other eligible conditions is unchanged. A person who has a mental illness may still be eligible if they meet all other legislative criteria. For example, someone with an advanced stage of terminal cancer who also has, for example, diagnosed clinical depression as a mental illness may still be eligible to access MAID on the basis of their cancer, so long as they meet all the other eligibility criteria. I will also note here that Bill C-41 uses the term “mental illness”, not “mental disorder”, so people with serious degenerative neurological disorders who are eligible today keep their access. We are talking about conditions like Parkinson’s disease. Mental illness can cause suffering just like the suffering experienced by a physical illness. Canadians living with mental illness deserve to have their suffering taken seriously, and our government takes it very seriously. We are working with provinces and territories to determine how we can best support Canadians living with mental illness in strengthening our public health care system. That is why we announced a $1.2-billion investment to extend the mental health and substance use agreements and home and community care agreements as we work with provinces and territories toward long-term solutions to prevent and treat mental illness. In addition, in 2023, we announced the working together to improve health care in Canada plan, which provides $200 billion over 10 years to provinces and territories, including $25 billion for shared priorities such as mental health. Regarding MAID for advance requests, Bill C-41 would allow adults to make an advance request for MAID following an early-stage diagnosis of an incurable illness that is expected to take away their ability to make decisions. This would allow an individual to make an informed decision about their care while they still have capacity and would set out the circumstances in which they would want to receive MAID later in their illness. For example, someone diagnosed with early-stage Alzheimer’s could make an advance request so that their wishes could be respected if they later lost the ability to make the decision for themselves. An advance request would not mean MAID is provided automatically. Eligibility requirements and safeguards would still need to be satisfied. The role for the federal government relates to the Criminal Code. To implement this change, provinces and territories would still have to make advance requests available in their respective jurisdictions. Under the current law, a person must be able to give informed consent to receive MAID. They must understand their condition, their options and the consequences of their decision, and they must generally confirm their consent immediately made before MAID is provided. Some illnesses, such as Alzheimer’s disease and dementia, gradually take away a person’s ability to make these decisions. As the illness advances, a person may no longer be capable of giving informed consent by the time they would want MAID. Under the existing law, this means they cannot receive MAID, even if they were clear about their wishes while they were still capable. Many Canadians feel this is inherently unfair. Importantly, this is about respecting the wishes expressed by an individual while they are capable of making decisions about their own care. Importantly, a family member would not be able to make an advance request for MAID on someone else’s behalf. Provinces and territories would decide whether to make advance requests available in their jurisdictions, and our government will continue working closely with them as we move forward. This is because MAID eligibility is a shared federal-provincial matter. The provincial role in the MAID framework is crucial to the fair and consistent delivery of care to Canadians. Individual provinces and territories have their own customized approaches to MAID to best serve their populations. Provinces and territories provide services, coordinate care and regulate providers so that Canadians in their respective provinces and territories have consistency and certainty. This must be done in deference to the autonomous choice of an individual as they approach the end of their life with a grievous and irremediable medical condition. In short, Canadians rely on their provincial and territorial governments to provide access to their charter right of security of the person in the context of MAID. If the House will indulge me, I will provide a short legal and historical context for this discussion. I will take members way back. A discussion about MAID became necessary in 2015 after the Supreme Court decision in the Carter case. Carter decriminalized medically assisted death. In that decision, our Supreme Court held that the criminal laws prohibiting assistance in dying limited the rights to life, liberty and security of the person under section 7 of the charter in a manner that was not demonstrably justified under section 1. As a result of the Supreme Court’s decision, the Criminal Code provisions prohibiting assisted suicide and providing that no person may consent to death being inflicted on them were deemed to be in violation of Canadians’ rights under the charter. Responding to the Carter decision via Bill C-14 in 2015, MAID was legalized for competent adults whose natural death was reasonably foreseeable. The Criminal Code established eligibility criteria and safeguards for MAID, as well as made exemptions to criminal offences, including murder and aiding someone to die by suicide. A subsequent case, Truchon, was heard at the Quebec Superior Court in March 2021, and the court’s decision in Truchon expanded eligibility for MAID to adults whose natural death was not reasonably foreseeable. This created two tracks in the Criminal Code: one where natural death is reasonably foreseeable, track 1, and one where it is not, track 2. In addition to eligibility criteria for those receiving MAID, notably that an individual must have a grievous and irremediable medical condition, the Criminal Code set out additional procedural safeguards that health care providers must follow before providing MAID where death is not reasonably foreseeable. The same legislation temporarily excluded persons from eligibility if their sole underlying medical condition was a mental illness. That exclusion for mental illness was originally set to end on March 17, 2027. Bill C-41 would permanently end the extensions. I would hazard that this issue of expansion for mental illness has perhaps been one of the most contentious and complex issues we have grappled with in the development of MAID legislation. In the joint committee’s third report, it was noted that although MAID is governed by federal law, health care regulations and medical standards fall within provincial jurisdiction. The division of authority introduces some added legal and administrative complexity in aligning federal policy with provincial implementation. With the benefit of the special joint committee’s findings, we have determined that the provinces and territories simply are not ready to administer an expansion of MAID for mental illness. I speak with some experience on end-of-life issues. Prior to entering politics, I worked in long-term care, I worked as a licensed funeral director and I worked as an estate planning lawyer. I have also sat as a board director of our local North Halton Hospice foundation. This is an organization seeking to build a palliative care hospice residence in my riding of Milton East—Halton Hills South. In these professional activities, discussing death became a fairly innocuous exercise. Death is, most simply, a fact of life that when possible, is best planned for and discussed with loved ones and trusted professionals. It is my opinion that those discussions are best had without the pressure of prying eyes or proselytization from the outside world, and free from those who contend they know better about how an individual should move through this life and how they should move on to the next. Choosing a medically assisted death is a fundamentally personal decision and a very fundamentally personal right. How MAID is delivered has become a main focus of the debate since 2015. Some of the concerns I have heard from people in my riding include the fear that vulnerable people will turn to MAID as a first option because they feel that other care or health services are too difficult to access or simply do not exist. Also, there is a concern that people could be coerced or influenced to opt for MAID, and this may be more likely for people who could already be vulnerable due to other socio-economic factors. It is important that Canadians are properly informed on the process to access MAID and the safeguards that exist to ensure that vulnerable persons do not improperly access MAID. First, at least 90 days must pass between the day the MAID eligibility assessment begins and the day the person receives MAID. Second, two health care practitioners, independent of one another, must conduct assessments and confirm that the person is actually eligible for MAID. Third, these assessors must inform the person of all reasonable and available options for relieving their suffering and offer the person consultations with people who provide those services. Fourth, the person and the assessors must have discussed all of the options for relieving the person’s suffering and agree that the person has seriously considered those options. Last, immediately before the person is to receive MAID, the MAID provider must give them the opportunity to withdraw the request for the procedure. If the person wants to proceed, the MAID provider must ensure that the person gives final consent. In Bill C-41, which we are discussing here today, there would be additional requirements in the case of an advance request. First, generally, we would implement minimal national safeguards that would set out Criminal Code requirements for the lawful provision of MAID based on advance requests. Second, the implementation of provincial and territorial frameworks would have to be developed and would have to state that any province or territory wishing to permit advance requests must first enact its own legislative framework. Advance requests would remain prohibited in jurisdictions that do not have this framework. Third, operational rules and participating jurisdictions would be responsible for rules on making, validating, amending, storing and withdrawing requests, including a reliable storage mechanism to verify that a request remains valid. Fourth, the requirement for two independent assessments would be enhanced so that the two physicians or nurse practitioners must confirm that the circumstances in the request have occurred, that the person is in an advanced and irreversible decline, and that they are experiencing intolerable suffering. Fifth, as in any MAID case, refusal would end the process. MAID could not be provided to a person who refuses, and their advance request would then be invalidated. When it comes to Quebec, Quebec’s existing framework would be incorporated into the federal criminal law regime without the need to amend Quebec’s legislation. I want to note here the tremendous responsibility that frontline care providers would shoulder in fulfilling these criteria. Their expertise, training, compassion and courage in providing this service really cannot be understated. These safeguards show that the analysis in providing MAID in each unique case would be a process of some burden, and it should be. I note the historical position of our Conservative opposition colleagues. They have been vocal on this, urging the government to scrap the expansion of MAID for what they call a mental disorder, most recently in a private member’s bill, Bill C-218. Bill C-218 was premature at the time of its tabling, as the special joint committee had not yet had time to consider evidence or hear from witnesses, and the bill ultimately failed in this House. In any event, our government’s Bill C-41, currently before this House, aligns with the request in the Conservatives’ private member’s bill, Bill C-218, to end the expansion of MAID for someone with a mental illness as a sole condition. On that, we have agreement, although perhaps for different reasons. I am not sure of my Conservative colleagues’ position on Bill C-41, but I cannot imagine on what grounds they would oppose it, since in one instance, it would provide what Bill C-218 asked for in ending the expansion for mental illness, and in the second, it would provide greater freedom and autonomy for Canadians in determining their own treatment and end of life through advance requests, a principle that is very popular, especially among older Canadians. It is hard to deny that MAID can be a contentious topic, because for all the legalities, science, regulations and debate, we are essentially discussing an issue that is the most profound experience of being human. We are all going to die. Dying is still a great mystery, one that we must continue to navigate and explore together with conversations like this one that embrace mutual respect, empathy and understanding for the emotion and fundamental humanity of contemplating how we leave this world. During my time working as a funeral director, I had the privilege of hearing the unfiltered experiences and stories of families as they found themselves as observers and helpers during the death journey of their loved ones. This is where the importance of individual autonomy and choosing the care and form of dying really became real for me. In the years that I have been serving on the hospice foundation board, a discussion has proceeded about how health care should address the experience, needs, beliefs and requests of each unique individual as they move through their own unique, individual death. Not all of us will be able to plan for our death or have control over the circumstances and timing of our transition from this world, but many of us will. When that time comes, I want to have the autonomy to make the choice that is best for me, in consultation with my family, my health care provider and my own conscience. We all deserve that. I would argue that it is the role of legislators to work with experts to achieve this for Canadians, not only because of the moral imperative to do so but because security of the person is enshrined in our charter, which contains protections for individuals, allowing them to maintain control of their bodily integrity, personal integrity and basic freedom of choice. Conversations such as the one we are having here in the House work to expand minds, address misinformation, open the dialogue and provide space for each of us to learn and share. These debates are absolutely imperative in bringing the best care to our citizens and helping government move toward legislation that will serve all Canadians.
