Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I give notice that, at the next sitting of the Senate, I will move:

That, notwithstanding the order adopted by the Senate on September 21, 2022, the sitting of Wednesday, February 28, 2024, continue beyond 4 p.m., if Government Business is not completed, and adjourn at the earlier of the completion of Government Business or midnight; and

That the Standing Senate Committee on Foreign Affairs and International Trade be authorized to meet after 4 p.m. on that day for the purpose of considering Bill C-57, An Act to implement the 2023 Free Trade Agreement between Canada and Ukraine, even though the Senate may then be sitting, with rule 12-18(1) being suspended in relation thereto.

[English]

Hon. Marc Gold (Government Representative in the Senate): Thank you, Senator Pate. It is an important question, and the mental health needs of all Canadians — not limited to those in prison, but including those in prison — is an important and challenging measure of how well we, as a society, are taking care of our citizens.

I’m not in a position to answer the specific question, but I will certainly raise it with the minister.

Hon. Marc Gold (Government Representative in the Senate): Canada is not complicit, and I don’t accept the premises of some of the ways in which our international judicial system is being used.

Canada — the Minister of Foreign Affairs — is in regular contact with its counterparts in the G7. Indeed, the minister has just come back from meetings with leaders in all the neighbouring Arab countries, and is working with our allies and Arab states toward enhancing the humanitarian aid, as well as working toward an arrangement whereby the hostages would be released and hostilities would cease. Canada is doing its part to provide relief to all citizens in that region.

Hon. Marc Gold (Government Representative in the Senate): I’m glad that you have the opportunity to ask me the question, dear colleague, but I simply don’t have the answer. However, I will certainly raise those considerations with the minister as soon as I can.

Hon. Marc Gold (Government Representative in the Senate) moved second reading of Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2.

He said: Honourable senators, I rise today to speak at second reading of Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2, which was introduced in the other place by the Minister of Health on February 1, 2024.

[Translation]

The bill proposes extending the temporary exclusion of mental illness as the sole underlying medical condition as an eligibility criterion for medical assistance in dying, or MAID, for three years, until March 17, 2027. Without this legislative change, the exclusion will be automatically repealed on March 17, 2024, at which point eligibility for MAID in those circumstances will become legal under the eligibility criteria and safeguards.

[English]

Colleagues, I appreciate that this is and continues to be a difficult issue for many of us.

On a personal level, this engages our deepest values and beliefs as human beings. How can it not, when we are faced with the human suffering of those who wish to avail themselves of MAID to end their own lives? But MAID is also an issue that engages us as senators as we work through our role as legislators in Canada’s constitutional democracy.

In my remarks today, I will focus on two main issues. The first is whether our health care systems, which fall under provincial and territorial jurisdiction, are ready to implement MAID where the sole underlying condition is mental illness, often referred to as MAID MD-SUMC. The second concerns the compatibility of Bill C-62 with the Canadian Charter of Rights and Freedoms.

I hope to persuade you that the government’s policy reasons for proposing a further delay are well-founded and reasonable, and to ask for your support in passing Bill C-62 as presented and to do so before we rise this week for our March break.

At the outset, colleagues, let us be clear about what Bill C-62 is not about.

Bill C-62 is not about whether medical assistance in dying is or should be the law of Canada. That was decided by the Supreme Court of Canada in the Carter decision and is now entrenched in our Criminal Code.

Nor does Bill C-62 invite us to decide whether MAID should be made available to those whose sole underlying medical condition is mental illness. Bill C-62 does not remove the expansion nor reopen it for debate. That was decided by Parliament and is already entrenched in the Criminal Code.

Bill C-62 provides for a three-year extension to ensure that MAID MD-SUMC can be implemented safely and consistently across Canada.

Colleagues, it is not the case that no work has been done to get the systems ready; on the contrary, since 2021, when Parliament adopted the initial sunset provision for this exclusion of eligibility, important progress has been made in preparation to address MAID for those whose sole underlying medical condition is mental illness. The federal government has been working closely with the provinces and territories on several measures, such as the development of a model practice standard for use by regulatory bodies and clinicians and the development and launch of a nationally accredited training curriculum for clinicians.

Despite this progress, however, all provinces and territories have asked for a further delay to ensure a consistent and safe approach across the country.

[Translation]

On January 29, 2024, several provincial and territorial health ministers sent a letter to the federal Minister of Health requesting an indefinite suspension to the expansion of MAID eligibility criteria. Since then, other provinces have indicated that they also support an extension of the sunset clause, although not necessarily indefinitely. This includes the province of British Columbia, which has one of the highest MAID application rates, and the province of Quebec, one of the most progressive MAID jurisdictions in the country.

Bill C-62 also follows the Special Joint Committee on Medical Assistance in Dying’s recommendation that an extension of the sunset clause was necessary.

[English]

In their report MAID and Mental Disorders: The Road Ahead, tabled on January 29, 2024, the committee noted that while considerable progress has been made in preparing for the expansion of eligibility for persons suffering solely from a mental illness, more time is needed to ensure that the health care system can safely provide MAID in these types of complex cases. The committee also recommended that a joint parliamentary committee be re-established to assess preparedness one year prior to expanding MAID eligibility.

As Minister Holland acknowledged during the Committee of the Whole, some provinces or territories are more prepared than others, as are some clinicians. The main issue is variation across the country. More time is needed to ensure that health systems Canada-wide are better prepared to address MAID requests that may arise in any given institution and that these requests be assessed and administered in a consistent manner throughout the country. Indeed, the government has also heard from major institutions, such as the Centre for Addiction and Mental Health, or CAMH, to the effect that they have not yet reached a consensus on how to implement MAID based solely on mental illness.

Honourable colleagues, the current date for the sunset clause to be lifted and to allow for MAID applications where mental illness is the sole underlying condition is March 17, 2024. Should Bill C-62 not receive Royal Assent prior to that date, a significant legal gap would be created that would lead to tremendous uncertainty across the country.

During this gap, the practice may be deemed legal, and it would create very real challenges for jurisdictions and practitioners. It would also create difficulties for individual applicants, especially where there is an absence of both resources and the required framework for the safe administration of MAID.

All parties need clarity, and applicants, assessors and practitioners all need consistency in the application of the criminal law throughout the country so that no one is in fear of running afoul of the law — at the same time ensuring that the best quality of care and service are provided across jurisdictions.

The coming-into-force provision of Bill C-62 should in no way be considered an invitation for us in the Senate to give rise to this legal gap.

[Translation]

Colleagues, we know that opinion differs on the fact that the health care system is not ready. We heard that the training program and the model practice standard are in place, that some clinicians believe that they and their colleagues are ready to assess those who apply for medical assistance in dying when their sole underlying medical condition is a mental disorder — otherwise known as MAID MD-SUMC — and that only a small number of people whose sole medical condition is mental illness would qualify for medical assistance in dying. In fact, the Minister of Health acknowledged all of this when he appeared before the Committee of the Whole. However, this is only part of the equation. What do people mean when they say that our health care systems are not yet ready?

[English]

With respect to the availability of trained assessors, let’s start with the numbers.

The provinces and territories responsible for the administration of health care have identified that only 2% of psychiatrists have currently been trained. Of the 1,100 clinicians who registered for training, only 130 are psychiatrists. And of those 1,100 clinicians, only 40 have received the full training module. Since the curriculum was launched in August 2023, 26 facilitated sessions have been delivered in six jurisdictions — Alberta, British Columbia, Nova Scotia, Ontario, Quebec and Saskatchewan — and 15 sessions are still planned in other jurisdictions: Manitoba, Newfoundland and Labrador, Ontario and Quebec. To be sure, more clinicians will be fully trained as time goes on, but the numbers fall far short of what is required for a country as big and diverse as is Canada.

Senators, we have heard, and will hear, that a number of practitioners are ready to address MAID based solely on mental illness, but there is not unanimity in the field.

Let me cite Dr. Tarek Rajji, who is the chair of CAMH’s medical advisory committee who testified:

We have several physicians and nurse practitioners who are open to being involved in the process of MAID assessments for eligibility, but we hear them very loudly that they need more guidance. They have no consensus standards to determine, if they see a patient in their office, whether this person has an irremediable illness or not.

Colleagues, the issue of readiness goes beyond the raw numbers of trained MAID assessors. It also engages the question of ensuring that there is consistency within and across jurisdictions in the implementation of the MAID regime.

For example, the Collège des Médecins du Québec, which is in principle supportive of MAID MD-SUMC, submitted that there was a need for further clinical guidelines that were yet to be formalized or adopted in that province.

Dr. Gaudreault, the president of the Collège, explained that, while guidelines were being developed and five criteria relating to MAID MD-SUMC had been identified, more work was needed.

British Columbia’s Minister of Health has publicly supported the federal government’s decision to delay the expansion of MAID eligibility. He stated, “It is my recommendation that additional safeguards are required to ensure the safe and appropriate delivery of MAiD . . . .”

This was also underscored in the submissions to the Special Joint Committee on Medical Assistance in Dying by the Centre for Addiction and Mental Health, CAMH, which is Canada’s largest mental health teaching hospital and one of the world’s leading research centres. Allow me to quote from their written submissions of November 28, 2023:

The Federal Model Practice Standards are a good first step in highlighting the benchmarks that health professional regulators can expect from their members who choose to offer MAiD. But it is not enough. Health professional regulators also rely on their members having access to the best available evidence through clinical practice guidelines. Guidelines for MAiD cases where mental illness is the sole underlying condition do not currently exist . . . .

While some provinces and territories regulatory bodies have successfully implemented practice standards developed by an independent task group made up of clinical, regulatory and legal experts into their guidance documents for clinicians . . .

He cites Alberta, Nova Scotia, Newfoundland and Ontario and then continues, “. . . others are still in the process of reviewing and updating their existing standards . . .”

For example, British Columbia, Manitoba, Saskatchewan, New Brunswick and the Northwest Territories, and, “. . . others have indicated that they have not made any advancements on this front.”

If I may continue with the written submissions of CAMH:

It is also important for the government to understand that the health care system is not equipped to handle the increase in MAiD requests that are expected to come in March 2024 . . . .

Without time to ensure that guidelines, resources and experts are in place, access to MAiD for people whose sole underlying medical condition is mental illness will be limited and inconsistent, and may exacerbate existing inequities within the health care system. It may also lead to confusion, distress and frustration for patients, their families, and health care providers.

Therefore, CAMH is urging further delay in extending MAiD eligibility to people whose sole underlying medical condition is mental illness at this time, and until the health care system is ready and health care providers have the resources they need to provide high quality, standardized and equitable MAiD services.

In addition to the submissions of CAMH, the Canadian Mental Health Association in their January 2024 statement in support of the extension wrote:

A delayed expansion of MAID will allow for the greater training of frontline mental health and substance use health staff. We ask that the government make the training modules available to community mental health and substance use health providers and the staff that support our organizations. Additionally, we suggest developing specific resources to help these providers address ethical, legal, and practical questions and concerns that will arise once MAID MD SUMC is available.

Colleagues, it is not only CAMH and the Canadian Mental Health Association who support the extension of the sunset clause.

The Ontario Hospital Association, which represents Ontario’s 140 public hospitals, has indicated that it is still struggling with how their institutions will implement MAID based solely on mental illness.

Colleagues, there is also the question of oversight.

Several provinces have implemented robust oversight mechanisms, including some of the larger provinces — British Columbia, Alberta, Ontario and Quebec — while others do not have formal MAID quality assurance and oversight processes in place, notably Manitoba, Prince Edward Island and New Brunswick.

Furthermore, the decision to pause the expansion was also predicated on the serious concerns about ensuring what may be called “wraparound services” to support the mental health needs of those contemplating making a MAID application. For example, is there enough capacity to refer individuals to suicide prevention resources if appropriate in a given case?

Last summer, a Best Brains Exchange facilitated by the Canadian Institutes of Health Research addressed MAID Track 2 — that is, where death is not reasonably foreseeable — including MAID based solely on mental illness. The meeting report states that the two-day exchange brought together stakeholders from multiple sectors including regional health care authorities, academics and clinicians.

During the Best Brains Exchange, it was noted:

Not everyone will be eligible and this can increase risk of suicide. Alleviating suffering might be a role in and of itself. Alleviating suffering and putting effort and focus into this discussion can mitigate potential problems, given the shortage of physicians and backlogs of mental health services.

Meeting participants further noted:

Being on a MAID waitlist after the process of asking for MAID can be stressful and can increase suicidality, and long wait lists can increase risk of suicidality, which all relates to the process being difficult for patients.

In addition to ensuring MAID applicants are adequately given wraparound supports, it is also important to ensure that clinicians or practitioners will be well supported as they undertake the highly complex assessments for those whose sole medical condition is mental illness.

During the same Best Brains Exchange, another system-wide need that remains to be fulfilled is:

It will be important for Health Authorities (HAs) and leaders to continue developing Communities of Practice and related support systems. HCPs [health care professionals] need space to reflect on their personal and professional boundaries, including the conditions under which they may say ‘no.’

[Translation]

Indeed, it is not just the provincial and territorial health ministers who raised these concerns during their meeting in Charlottetown. These concerns were also at the heart of the January 30 statement by the Canadian Mental Health Association to support an extension of the sunset clause. In their view, there aren’t enough time and resources to consult the community partners and people with a lived experience of mental health problems and addiction, or even to support the front-line mental health and addictions personnel, who have to respond to requests for information and who are likely to proceed with the assessments.

[English]

Colleagues, there is also the related issue of the coordination of mental health and other support services that are important in this process.

Some jurisdictions have robust coordination services to manage requests and provide ancillary services, as do British Columbia, Alberta, Saskatchewan, Manitoba, Nova Scotia and Newfoundland and Labrador. Other jurisdictions take a decentralized approach, which can result in less coordination across services and disciplines, for example, in Ontario, New Brunswick and Prince Edward Island. The availability of necessary support services for both practitioners and patients vary, depending on the region.

Colleagues, the government has also heard from Indigenous communities that they are not ready for MAID MD-SUMC to be available in their communities. Discussions with Indigenous leadership and communities have begun, but more time is needed to properly engage and consult.

On this, the Government of Canada has launched a two-year engagement process on MAID to hear the perspectives of First Nations, Inuit and Métis, including urban Indigenous people, non-status/off-reserve Indigenous people, Indigenous peoples living with disabilities, and Two-Spirit, LGBTQQIA+ and gender-diverse Indigenous people. This engagement takes a two‑pillar approach through both Indigenous-led and Health Canada‑led engagement activities.

To date, nine Indigenous organizations have been funded to lead community engagement on MAID and/or palliative care. Health Canada is supporting additional engagement activities including an online survey open until June 30, 2024, and a suite of 23 national knowledge exchange round tables, led by an Indigenous-owned business, scheduled to take place between February and April 2024 in seven locations across Canada and virtually.

The information collected through all engagement activities will inform a What We Heard report, or WWHR, on the views and experiences of Indigenous peoples on MAID, planned for release in 2025. This report will help to guide culturally safe and informed MAID policy at all levels of government and respect the diversity of Indigenous peoples.

Health Canada plans to provide an official update to Parliament on Indigenous engagement on MAID in March 2024.

Colleagues, the government has listened to the provinces and territories, to medical professionals, to people with lived experience, to Indigenous communities and to other stakeholders. Bill C-62 is the product of that engagement, and it reflects the government’s considered view that our health systems across Canada simply need more time to be properly and consistently ready.

Honourable senators, the bill before us is about process, prudence and, yes, about cooperative federalism. The request for a pause was made by those with the constitutional responsibility for MAID applications, the provinces and territories, and they spoke with one voice.

Let me switch to the second of my topics.

[Translation]

Many things have been said about determining whether excluding eligibility for MAID where the sole underlying medical condition is a mental disorder is consistent with the Charter. Some have argued that the exclusion not only doesn’t comply with the Supreme Court ruling in Carter, but that it also perpetuates the stereotypes and discrimination against people suffering from mental illness.

Respectfully, I disagree with that statement. Allow me to underscore three points on this.

[English]

The first is in relation to the decision of the Supreme Court in the Carter case.

Now, colleagues, it is true that the declaration of invalidity in Carter was broadly framed and that it did not expressly exclude mental illness from its ambit. But the court took care to specify that its declaration was “. . . intended to respond to the factual circumstances of this case.” Those circumstances involved plaintiffs suffering from advanced and grave physical illnesses. The issue of MAID on the basis of a mental illness was not before the court in Carter, and the court did not purport to decide it. Indeed, the court expressly noted that MAID for persons with psychiatric disorders would “. . . not fall within the parameters . . . ” of its reasons. In fact, no court has yet determined that excluding persons whose sole underlying medical condition is mental illness infringes the Charter.

Moreover, in concluding that the blanket prohibition on MAID for those whose death was not reasonably foreseeable — in concluding that that was unconstitutional — the Court in Carter recognized that physician-assisted death involves complex issues of social policy and a number of competing societal values and interests. It acknowledged that these competing interests are themselves protected under the Charter and that Parliament faces a difficult task in balancing the perspective of those who might be at risk in a permissive regime against the perspective of those who seek assistance in dying. Importantly, the court suggested that a high degree of deference would be given to the particular balance struck by Parliament’s response.

The court stated at paragraph 132 in its reasons for judgment:

. . . nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note — as did Beetz J. in addressing the topic of physician participation in abortion in Morgentaler — that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief . . . . In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

The second point I want to make concerns the rights protected by the Charter itself, notably the equality rights provisions of section 15, and the right to life, liberty and the security of the person guaranteed by section 7 of the Charter.

Regarding section 15, the government has acknowledged, through its Charter Statements for former Bill C-7, Bill C-39, and now for Bill C-62, that the exclusion of eligibility creates a distinction on the ground of disability.

But this is not the end of the constitutional inquiry under section 15. As the Supreme Court has stated in several leading decisions, section 15 of the Charter is designed to protect substantive — not formal — equality. Otherwise put, the equality rights protected by the Charter do not necessarily require identical treatment. For a law to infringe section 15, the distinction in the law must be discriminatory in the substantive sense. The court has told us that this is a contextual analysis that looks at whether the distinction created by the law reinforces, perpetuates or exacerbates stereotypes and social disadvantage.

As outlined in these Charter Statements, and as stated by the Minister of Justice when he appeared before us in the Committee of the Whole, the temporary exclusion of eligibility is not based on an assumption that persons with mental illnesses lack decision-making capacity, or on a failure to appreciate the severity of suffering that mental illnesses can produce. Rather, it is based on the complexities and risks of permitting MAID in circumstances where expert opinion is divided and where all provinces and territories have indicated that they need more time to get ready. Accordingly, it is the view of the government that Bill C-62 is not discriminatory and therefore does not infringe the equality rights protected by the Charter.

As confirmed by the Minister of Justice, Minister Virani, at Committee of the Whole:

. . . When you get at the heart of an equality analysis under the Charter, you look at whether you’re perpetuating negative stereotypes, or attacking or impugning the dignity of the individual. . . . there’s an equivalence between mental suffering and physical suffering. There is no daylight between those two. As well, there is no perpetuation of a negative stereotype about the decision-making capacity of an individual who is mentally ill.

However, there is an appreciation of the complexity of applying determinations about capacity and decision making in the context of people who are struggling, and who may be making requests in a time of crisis . . . and where suicidal ideation can enter as part of, as a feature of or as a symptom of someone’s mental illness. . . . It’s not just that MAID is different from what general health care practitioners do, but it’s also that providing MAID in this context is substantively different — qualitatively different — than any other context that has been provided. Are there Charter issues at stake? Absolutely the Charter is at stake. But . . . we have to make triple sure that we have the rigorous assessment and training in place so that people can make the evaluation. It’s critical to get that evaluation right. I don’t think the Constitution mandates . . . [the] government to provide a health care service when it is not safe to do so, and that’s our determination: It is not safe at this time.

A review of section 7 of the Charter leads to a similar conclusion. Although the temporary exclusion of eligibility clearly triggers the right to life protected by section 7, Bill C-62 does not violate the principles of fundamental justice as elaborated by the Supreme Court of Canada, and the right is the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice. In that regard, Bill C-62 is neither vague, arbitrary nor overbroad. As such, the government is of the view that it does not infringe section 7.

Furthermore, colleagues, as we know, rights under the Canadian Charter of Rights and Freedoms are not absolute but are subject to such reasonable limits that can be justified in a free and democratic society. It is the position of the government that given the concerns about readiness, delaying eligibility for a three-year period is both reasonable and justified.

Finally, let me say a word about the role of Parliament in relation to Charter issues of this kind. As the Supreme Court of Canada has stated in several leading decisions, including but not limited to the Carter case, where cases raise complex issues of competing rights and social values, Parliament is to be given some latitude in choosing between a range of constitutional policy options. Indeed, the Supreme Court in Carter, as I mentioned earlier, acknowledged that Parliament’s response — its decision on how to strike the balance amongst these diverse and competing interests — would be owed a high degree of deference from the courts.

Given the important and competing interests, given the stated positions of all provincial and territorial governments, given the lack of consensus within the medical profession as to their readiness to implement MAID where the sole underlying medical condition is mental illness, I submit, colleagues, that Bill C-62 falls squarely within a range of reasonable alternatives that are permissible under the Charter and permissible for Parliament to pursue.

Colleagues, I stated at the outset that this is a difficult issue for all of us, for it engages both our personal convictions and experiences as well as our role as senators in our constitutional democracy, but as I have endeavoured to demonstrate in my remarks today, Bill C-62 represents a legitimate and reasonable policy response to a very complex and challenging social issue. It is supported by an overwhelming majority in the other place and by the health ministers in every province and territory in our country.

Although significant progress has, indeed, been made on the question of access to MAID with mental illness as the sole underlying condition, or MAID MD-SUMC, more work still needs to be done. The additional three years strikes the correct balance between ensuring that individuals across Canada can safely access MAID MD-SUMC while providing a clear target to ensure that our health care systems continue to do what is necessary to be ready. It is a prudent measure to ensure that Canada has a MAID regime in place that is carefully studied, properly equipped and able to respond safely and consistently to the complex issues raised in the cases with which it will be confronted.

For these reasons, colleagues, I would respectfully ask you to support Bill C-62, and I thank you for your very kind attention.

Hon. Marc Gold (Government Representative in the Senate), pursuant to notice of February 15, 2024, moved:

That the Standing Senate Committee on National Finance be authorized to examine and report upon the expenditures set out in the Supplementary Estimates (C) for the fiscal year ending March 31, 2024, with the exception of Library of Parliament Vote 1c;

That, for the purpose of this study, the Standing Senate Committee on National Finance have the power to meet, even though the Senate may then be sitting or adjourned, with rules 12-18(1) and 12-18(2) being suspended in relation thereto;

That the Standing Joint Committee on the Library of Parliament be authorized to examine and report upon the expenditures set out in Library of Parliament Vote 1c of the Supplementary Estimates (C) for the fiscal year ending March 31, 2024; and

That, in relation to the expenditures set out in Library of Parliament Vote 1c, a message be sent to the House of Commons to acquaint that house accordingly.