Is the federal government rushing to pass another medical assistance in dying bill that will end up being struck down as unconstitutional?
Justice Minister David Lametti doesn’t believe so, but a growing number of legislators and organizations think otherwise.
At issue is the exclusion in Bill C-7 of mental illness as the sole reason for an assisted death.
Lametti has maintained that the exclusion is necessary until the issue can be studied further by a parliamentary review, saying that there’s a lack of consensus in the medical community as to whether medical assistance in dying (MAiD) can ever be carried out safely in cases where the sole underlying condition is a mental illness.
The justice minister found himself having to repeatedly defend the government’s position Monday before the Senate’s legal and constitutional affairs committee, where senators raised concerns the exclusion is discriminatory and unconstitutional and will lead to the bill being struck down.
“I don’t think this justification will hold water before the courts,” said Conservative Sen. Claude Carignan.
“I think again you’re putting a heavy burden on persons suffering from a mental illness,” Carignan said. “They will be forced again to fight for their rights, they will be forced to go back before the courts … and this will force the government to amend its MAiD legislation again.”
Part of the government’s first MAiD law was struck down by a Quebec court last year, which found that the condition that a person’s natural death be “reasonably foreseeable” in order to access MAiD was unconstitutional.
The government is now racing toward a court-imposed deadline of Dec. 18 to pass its revised bill, which includes two tracks with different conditions: one for persons whose deaths are deemed reasonably foreseeable, and another for those whose deaths are not.
The fact that MAiD cannot be limited to those whose deaths are reasonably foreseeable would have opened up the possibility that individuals could apply solely on the basis of a mental illness, which is why the government had to exclude such individuals until the issue is studied further, Lametti has said. No date has been set for that review.
“It is an exclusion, but it’s a very thin one. It’s a very narrow one, and we believe that it will pass the constitutional test,” Lametti told the Senate committee. “However, we do expect more changes to be brought about after that particular issue is given more study.”
He also clarified that the term “mental illness” as worded in the exclusion in the bill is meant to capture conditions “that are primarily treated by a psychiatrist, that present as an unpredictable disease trajectory or that have as a possible symptom a desire to die.”
The exclusion would not include neurocognitive disorders such as Alzheimer’s disease, or neurodevelopmental disorders, he said.
Some issues raised by the Senate committee members were not alleviated by the minister’s responses.
“My one concern is that in some of the observations you’ve made about the need for more time for review, maybe a lack of consensus, there’s a certain sense that these are thoughtful policy questions, but not necessarily constitutional answers to some of the constraints in the bill,” said independent Sen. Brent Cotter, a legal ethicist and former dean of the College of Law at the University of Saskatchewan.
Individuals with a mental illness would not be excluded under the new bill if they also have a physical illness that meets the eligibility criteria, which include that the illness is incurable and the person is suffering intolerably.
Some Canadian psychiatric experts have stated it should be possible for a mental illness to be the sole reason for an assisted death, so long as there are proper safeguards added to the legislation.
Organizations that have argued that the exclusion is likely unconstitutional include Dying with Dignity Canada and the Canadian Bar Association.
“A provision that applies only to persons with mental illness, without appropriate justification, is discriminatory in nature because it is arbitrary,” argues the Canadian Psychiatric Association in a brief submitted to the House of Commons’ standing committee on justice and human rights, which has been studying Bill C-7.
“A provision that applies to all persons with mental illness, without appropriate justification, is unconstitutional because it is overbroad.”