Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise once again to speak to Bill C-39, an act to amend the Criminal Code (medical assistance in dying), as the official critic of the opposition.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise once again to speak to Bill C-39, an act to amend the Criminal Code (medical assistance in dying), as the official critic of the opposition.

As I stated in my second reading speech, medical assistance in dying has been and remains one of the most complex and deeply personal issues for individuals and families across the country. There is a wide range of valid opinions in this chamber on what the appropriate parameters and safeguards should be as we continue to grapple with these questions in further development of our MAID regime.

However, colleagues, I believe we have gone too far with the proposed expansion to include those with mental illness as a sole underlying medical condition. I think the introduction of Bill C-39 is evidence that we have moved too far, too quickly, and is an attempt to put a pause on a policy that we should be repealing altogether.

This is an emotional topic for so many of us, yet the facts and expert evidence need to remain paramount to this discussion. The stakes are too high.

While little has changed since I last spoke on Tuesday, I do want to touch on some of the exchanges that took place during Committee of the Whole yesterday.

Senator Batters, a tireless advocate for mental health, asked the ministers about their 2021 election platform’s promise to establish and fund the Canada mental health transfer — a commitment of $4.5 billion over five years. According to their own platform cost breakdown, as Senator Batters noted, they should have already invested $1.5 billion in mental health care. Yet, they have not invested a single dollar to date. The state of mental health care in Canada is tragic, particularly given what is proposed in this expansion.

Minister Duclos retorted with, “. . . not only are we not breaking that promise, but we are enhancing it.” I think we need to be wary of funding promises announced as achievements — enhanced as they might be — when struggling, vulnerable Canadians are still waiting for improved access to treatment.

A common theme in these debates, both in this chamber and in the special joint committee, is that it remains impossible to predict irremediability with any certainty. Yet, the ministers dismissed these concerns by stating that if there is any question as to the irremediability of the particular illness, then that individual will not get MAID. In practice, we cannot be certain that this is what will happen. Expanding MAID for mental illness still poses risks that people are receiving assisted suicide prematurely or wrongfully.

When Minister Lametti was asked about the profound lack of consensus and discomfort among psychiatric experts in Canada, he pointed to the expert panel assembled by his government — which, of course, was not appointed to study the merits of the expansion but to provide a road map. What we know with certainty is that psychiatrists do not agree that one can ever predict irremediability of a mental illness. There is no consensus on this matter.

Minister Lametti also attempted to discredit the statistics resulting from the surveys conducted by the Canadian Psychiatric Association and the Ontario Medical Association by stating that the questions were based on disinformation. Those surveys are publicly available, and the questions are clear and straightforward.

For example, the statistic that was referenced from the Canadian Psychiatric Association was the result of this question: Should persons whose sole underlying medical condition is a mental disorder be considered for eligibility for MAID? I do not believe this could be reasonably interpreted as disinformation.

Honourable senators, I asked the ministers about how they will address jurisdictional concerns. The National Assembly of Quebec, after wide consultation, tabled Bill 11 and ultimately decided not to allow MAID for mental illness. Minister Lametti acknowledged the lack of professional consensus in this area when asked about this decision. Unfortunately, he was not able to provide a clear answer on how they plan to handle this, how they can prevent cross-jurisdictional doctor shopping or which sets of guidelines Quebec clinicians will be expected to follow. Before we proceed with this expansion, it is imperative that our own Attorney General is clear on the jurisdictional considerations.

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Also, since I spoke on Tuesday, Senator Gold distributed the Gender-based Analysis Plus, or GBA Plus, which indicates what impact, if any, this legislation will have on women and other vulnerable groups. Senator Jaffer asked a question related to this to the ministers as well.

While this concern was raised by several witnesses at the special joint committee, I was shocked by the findings in this particular report, considering the fact that the analysis is provided by a government department. The GBA Plus states:

In the Benelux countries, where eligibility for MAID is not limited to those suffering physically, there have been controversial MAID deaths that have occurred, and it can be expected that similar cases would emerge in Canada under this option. For example, in the Netherlands, MAID was provided to a patient in her twenties who had been sexually abused as a child because of the emotional suffering she endured following the trauma. There have also been cases of transgender individuals and people who identify as gay obtaining MAID due to the suffering associated with those aspects of their conditions.

The government’s own department is suggesting we should see an uptick in these types of cases.

The analysis also states:

It can be expected that should MAID be made available in Canada for individuals whose sole underlying condition is mental illness, we would see an increase in women seeking MAID for psychiatric suffering, and at younger ages.

This is extremely troubling. As Senator Batters said when she raised this with the ministers yesterday, on International Women’s Day, “That’s hardly the kind of gender parity that we want.”

Honourable senators, how can the government ensure that a year from now we will have the necessary data, resources and safeguards in place to protect vulnerable Canadians struggling with mental illnesses from premature death? There is no evidence to indicate that the difficulties around such important issues as predicting irremediability and the inherent risk to vulnerable persons will be resolved in a year.

Colleagues, the idea of a mental health patient receiving MAID when the irremediability of their illness is subjective and open to interpretation troubles me greatly. We are debating the circumstances in which vulnerable Canadians live and die. The experts remain divided, yet this government is moving forward with an ideological decision that will undoubtedly put vulnerable lives at risk, and this is before a single dollar has been invested in their promised mental health plan.

The lives of Canadians battling mental illness are not disposable.

In spite of all these concerns, I will reluctantly be voting for Bill C-39. A delay of one year is clearly better than the alternative: a dangerous MAID expansion to happen next week. Thank you.

Hon. Julie Miville-Dechêne: I rise to speak briefly in support of Bill C-39 at third reading. The bill delays, by one year, eligibility for medical assistance in dying in cases where mental illness is the sole underlying condition.

As my colleagues Senator Manning and Senator Kutcher have mentioned, this is a very difficult issue. It’s not easy to talk about medical assistance in dying. I’m feeling quite emotional after listening to my colleagues, so I will continue.

I support this delay, which will give experts another 12 months to try to refine the guidelines around this extremely rare practice globally. More fundamentally, however, I don’t see any need to act too quickly on such a serious issue, especially in light of the critical shortage of psychiatric resources.

I have always believed that the issue of medical assistance in dying for people with psychiatric illnesses can’t be boiled down to just individual rights or a constitutional analysis. Mental illness is more complex than physical illness, because it often progresses slowly and unpredictably. Unlike degenerative neurological diseases, whose course is known and predictable, it is not uncommon for the psychological suffering associated with mental illness to improve over the medium and long terms.

The federal government outpaced the Government of Quebec on this file before conducting a similar review. Less than a month ago, in mid-February, the Government of Quebec introduced a bill that does not extend medical assistance in dying to patients suffering solely from mental illness.

This exclusion was recommended in the report of the Select Committee on the Evolution of the Act respecting end-of-life care, after extensive consultation with the public and experts. The report states, and I quote:

Self-determination is not the only principle that should be taken into account in this discussion. The protection of vulnerable persons, the ability to consent and the risk of abuse are all elements that enter into the equation.

The Quebec report notes that psychiatrists are divided on the incurability and irreversibility of certain mental disorders. That division reflects the complexity of these illnesses, which are more unpredictable than physical illnesses.

Consequently, there is a real risk of making medical assistance in dying available to a patient too soon. Senator Kutcher, I do not believe that I am participating in what you referred to in your speech as a misinformation campaign on this matter by saying that. I think that there are fundamental differences of opinion in the medical profession, which is why we need to be very careful.

The Quebec report cites psychiatrists who explained that suicidal thoughts are inherent to certain mental disorders. What’s more, the response to psychiatric treatments varies. Alleviated suffering can be a long time coming, after months or years of psychiatric treatment, assuming such treatment is available. I will quote another excerpt from the same report:

We heard the testimonies of several individuals who, after years of unsuccessful treatments, managed to achieve a better balance. These witnesses told us that if they had been eligible for medical aid in dying, they would undoubtedly have applied for it at a time when their health condition seemed hopeless. Today, these same persons are doing much better and are able to cope with their illness because they have received a correct diagnosis and appropriate treatment. Thus, the uncertainty surrounding the trajectories of mental disorders prompts us to be very cautious.

The testimony that made the biggest impression on the select committee came from the Association québécoise de prévention du suicide, the Quebec association for suicide prevention. According to the association, expanding MAID would have an impact on people with suicidal tendencies. There is concern that it could send the signal that death is a legitimate or appropriate option for people with mental disorders. This would undermine years of suicide prevention efforts. I should point out that this does not mean that these suicidal patients would access MAID, but their distress could increase. Let me remind you that Quebec is a pioneer in medical assistance in dying, yet Quebec’s elected officials decided not to rush into the specific issue of eligibility where mental illness is the sole underlying condition, because there are too many differences of opinion.

I also want to point out two things that I think reinforce how important it is to take the time to think about these sensitive issues. First, Quebec now leads the world, with 7% of deaths in the province resulting from MAID. That is higher than Ontario and even long-time pioneers Belgium and the Netherlands. The fact that the rise in MAID was markedly faster in Quebec than elsewhere prompted the chair of the Quebec select committee to investigate the cause and launch a consultation, while advocating for better access to palliative care.

Second, it seems as though, in Quebec at least, it is now easier to get medical assistance in dying than it is to get comprehensive palliative care, and yet both of these options should be available under Quebec law, which guarantees all citizens access to both medical assistance in dying and palliative care, whether at home or in a health care facility.

Some tragic events that occurred in Quebec recently exposed flaws in the system. Andrée Simard, widow of former Quebec premier Robert Bourassa, was denied palliative care during the last three days of her life at St. Mary’s Hospital in Montreal. According to her daughter, Michelle Bourassa, with whom I spoke at length, Ms. Simard died in a lot of pain because she was not given any palliative sedation. Ms. Simard forbade her family to use her fame to get preferential treatment. Her daughter chose to fight in memory of her mother so that all dying persons are treated fairly and with humanity, whether they choose palliative care or medical assistance in dying.

That’s why, even though these issues don’t fall under federal jurisdiction, I think that the availability and quality of palliative care and psychiatric services are a prerequisite for expanding medical assistance in dying. We can’t legislate in a vacuum, in the abstract universe of the Charter of Rights, with no regard for what care is actually available to patients. As responsible legislators, we need to think about the applicability and actual consequences of the laws on which we vote. In this case, we need to prevent the current trend of the health care system getting around providing access to care by expanding access to medical assistance in dying. Better access to psychiatric care is a prerequisite for treating people’s suffering. That is also how we show our compassion. For all of these reasons, I will be voting in favour of Bill C-39. Thank you.