Hon. Paula Simons: Thank you, Your Honour.

On May 5, 2016, the Court of Appeal of Alberta brought down a landmark decision in the case of the Canada (Attorney General) v E.F.; the Honourable Mr. Justice Peter Costigan, the Honourable Madam Justice Marina Paperny and the Honourable Madam Justice Patricia Rowbotham — three of Alberta’s most respected jurists — delivered their judgment unanimously. They ruled that E.F., a 58-year-old Alberta woman, had the right to receive medical aid in dying, even though her illness was not terminal and the cause of her constant searing pain and near paralysis was psychogenic, the result of a psychiatric condition known as conversion disorder. E.F. was not suicidal. She was not delusional. The court held that she was competent to make her own medical decisions, and they allowed her to do so.

The decision came at an unusual moment in Canadian legal history — after the Supreme Court of Canada’s Carter decision and before the passage of Bill C-14, Canada’s first medical assistance in dying legislation. At that point, patients who wished to receive MAID had to petition the court for permission. E.F. had originally been granted the right to die in a decision from Madam Justice Monica Bast of the Alberta Court of Queen’s Bench, as it was then known. The judge held that even though the patient’s symptoms had a psychiatric genesis, she met the threshold established in the Supreme Court’s Carter decision. Justice Bast wrote:

The evidence . . . establishes that none of the multitude of traditional or non-traditional treatments, therapies, or trials that the applicant has undergone for over nine years since the onset of her medical condition has remedied the applicant’s medical condition or made it right. The evidence clearly establishes that the physical symptoms suffered by the applicant as a result of her medical condition deprive her of any quality of life. The fact that the applicant’s medical condition is diagnosed using the DSM-5 or the fact that it has a psychiatric component cannot be permitted to overshadow the real horrific physical symptoms that the applicant is most definitely experiencing on a continual and daily basis.

The Court of Appeal concurred with Justice Bast, but they went further. Let me quote now from that unanimous Alberta Court of Appeal decision:

The specific issue of whether those suffering from psychiatric conditions should be excluded from the declaration of invalidity was very much part of the debate and the record before the Supreme Court. For example, at paragraph 114, the court discussed Canada’s position regarding the risks associated with the legalization of physician assisted death in these terms:

Here, the Alberta court went on to quote the Supreme Court’s original Carter ruling, and I will do so as well:

In [Canada’s] view, there are many possible sources of error and many factors that can render a patient “decisionally vulnerable” and thereby give rise to the risk that persons without a rational and considered desire for death will in fact end up dead. It points to cognitive impairment, depression or other mental illness, coercion, undue influence, psychological or emotional manipulation, systemic prejudice (against the elderly or people with disabilities), and the possibility of ambivalence or misdiagnosis as factors that may escape detection or give rise to errors in capacity assessment. Essentially, Canada argues that, given the breadth of this list, there is no reliable way to identify those who are vulnerable and those who are not. As a result, it says, a blanket prohibition is necessary.

The evidence accepted by the trial judge does not support Canada’s argument. Based on the evidence regarding assessment processes in comparable end-of-life medical decision-making in Canada, the trial judge concluded that vulnerability can be assessed on an individual basis, using the procedures that physicians apply in their assessment of informed consent and decisional capacity in the context of medical decision-making more generally. . . .

The Alberta justices continued:

The court concluded, at paragraph 116, “. . . the individual assessment of vulnerability (whatever its source) is implicitly condoned for life and death decision making in Canada”, and accepted that “it is possible for physicians, with due care and attention to the seriousness of the decision involved, to adequately assess decisional capacity”.

The Government of Canada could have appealed the E.F. ruling to the Supreme Court. It did not, so E.F. was granted the release she had sought, and we were left with this somewhat unusual precedent. Some have argued that the E.F. case somehow doesn’t count because it was heard in that strange legal limbo time, after Carter and before Bill C-14, because it dealt with the issue of whether E.F. was entitled to MAID at that particular moment.

However, Justices Costigan, Paperny and Rowbotham didn’t simply grant E.F.’s petition. They provided a close reading and sharp analysis of Carter, specifically as it related to MAID in cases of serious psychiatric disorders. In effect, they found that Carter established a constitutional right to medical aid in dying for psychiatric patients who faced unendurable and irremediable suffering, with their vulnerability and capacity to be assessed on a case-by-case basis.

Based in no small part on the legal logic of this very ruling, we, the Senate of Canada, determined in 2021 that Bill C-7 was unconstitutional because it contained a blanket denial of MAID to anyone whose sole underlying cause of unendurable medical suffering was deemed to be psychiatric.

Let me remind all of you who were in the Senate that day and all of you who have joined us since of how we voted: by a margin of 57 to 21, with 6 abstentions, to accept an amendment from Senator Kutcher to allow for people with serious, intractable and profoundly debilitating psychiatric disorders to receive MAID, with a sunset clause to allow governments and medical professionals to prepare. The Senate then voted to accept Bill C-7, as amended, by a margin of 66 to 19, with 3 abstentions, and the government itself accepted Senator Kutcher’s amendment.

Yet, here we sit today as many seem to wish to relitigate this whole debate, as though all our careful work in 2021 never happened and as though the E.F. decision itself never happened. How did we get back here, retreating and ceding hard-won ground in Canadians’ fight for personal liberty and bodily autonomy?

The government tells us that Canada is not ready for this exercise of constitutional equality. The truth is that it is our provincial and federal politicians who are not ready, because they are afraid that this decision will be controversial.

A three-year extension, one which kicks this issue down the road until after the next election? Let us be honest. If we wait three years, one of two things will happen. Either the Liberals will be re-elected, and then perhaps they’ll feel insulated enough to respect the courts and the Charter. Clearly, they won’t stand on principle now. Why bother if your opponents are going to weaponize your position to score political points? In the second scenario, the government will be defeated, and the Conservatives will make good on their public threat to defy the Constitution and the courts and deny MAID to those with irremediable and unbearable psychiatric or psychogenic illnesses.

This isn’t just about Canadian politics. The backlash goes far deeper than that. Over the last three years, North Americans have seen a broad legal and cultural assault on the very idea of bodily autonomy and on the rights of patients and doctors to make private and personal treatment decisions based on the best medical evidence.

In 2022, the Supreme Court of the United States upended the long-standing abortion rights and privacy protections of Roe v. Wade. Now, some states are taking harsh steps to limit the ability to end a pregnancy or even to receive life-saving care in a gynecological emergency. Women have been stripped of their fundamental rights to bodily autonomy while doctors have been robbed of the responsibility and the duty to do their jobs based on the best science. The best interest of the patient has been trumped by religious fundamentalism and straight-up misogyny, putting patients and physicians alike in danger of criminal prosecution.

Then there’s the war on trans youth and adults and on the doctors who treat them. It started in the United States; then it spread to Canada. This very month, in my home province of Alberta, doctors were told that they will have to make treatment decisions based not on the best medical interests of their patients but rather on a series of arbitrary rules and regulations created by the premier’s office. Young patients are being told that their bodies don’t belong to them or even to their parents, but rather to politicians and bureaucrats.

Because this culture war on trans kids and the physicians who treat them is seen as a popular vote winner, we are denying patients bodily autonomy and denying physicians their professional rights and responsibilities and putting them under threat of sanction.

It’s no accident that the very day Premier Smith announced a crackdown on doctors who treat young trans patients, a coordinated push poll began in Alberta aimed at limiting abortion access for teens in the province as well.

This new pushback against MAID is absolutely akin to the war on reproductive choice and the war on gender-affirming medical care.

We’re told not to worry, that this is just about a temporary delay in MAID for practical reasons. Don’t be fooled. If we pass Bill C-62 with a three-year extension, all hope for equal access to end-of-life medical care will evaporate. This will be a wedge, the thin edge of a wedge — a cue to start rolling back access to MAID for more and more people.

As senators, it is part of our job to uphold Charter rights and to defend the Constitution. We are not elected; we are appointed. We are not beholden to election cycles and popular opinion. We have the freedom and the responsibility to take tough decisions. At this moment in our history, most of us — though not all — are non-partisan. We are not beholden to a leader or a party. We have been given the privilege to think for ourselves and to speak for ourselves in a way that few other politicians in Canadian history — or world history — have ever had.

It is also our job to exhibit responsible restraint, to show due deference to the elected other chamber. We do not overstep precisely because we are not accountable. We do not answer for our decisions at the ballot box. We can’t be self-indulgent and exploit our protected appointed status to be social revolutionaries. Instead, we are meant to be conservative — in the best sense of the word — to protect the fundamental foundations of our Constitution.

But here is the thing, my friends: We have shown a lot of restraint and deference. When Bill C-7 came to us in 2021 in its original, unconstitutional form, we could have defeated it. We did not. We were restrained. We debated it carefully and found a compromise, which was Senator Kutcher’s amendment. We could have passed that amendment without a sunset clause or asked for a shorter sunset clause, but we did not. We showed restraint and deference.

And when the government didn’t make that first deadline and brought us Bill C-39, we showed restraint again. We deferred to the will of the elected Parliament and granted their request for another extension.

When do we stand our ground and defend Bill C-7 as it was passed by the Senate and accepted by the other place? It is our job to defend the Charter and the rights of minorities, and what minority group could possibly be more marginalized than those with serious psychiatric illnesses who have been waiting for Bill C-7 to come into full effect for three years now? They have been waiting with restraint and patience for the right to have their competence and their legal capacity to make their own medical decisions respected.

Of course, some would, with the best of intentions, deny those very people their right to self-determination because they believe it is for their own good. We are told that it is because psychiatric patients are routinely discriminated against in this country that we must protect them from themselves and the consequences of their decisions.

It is true that we in this country have a profound crisis when it comes to a lack of mental health care. Many people with mental health problems, or more complex psychiatric conditions, live in conditions of poverty and isolation: some are unhoused; others are housed only precariously. There are all kinds of people who have already given up and either taken their own lives or begun killing themselves, slowly and inexorably, through substance abuse.

When opponents of MAID for mental illness paint a picture of a dystopian future in which hundreds of hopeless people, tired of poverty and discrimination, ask for MAID simply because their lives seem too hard and miserable, I’ll agree that isn’t so far‑fetched. But let’s please stop using our moral failure to address the socio-economic needs of those with addiction and mental illness as a way to slough off our legal duty to protect the Charter rights of those with extremely serious psychiatric illnesses who are being forced to suffer while we dither.

We can walk and chew gum at the same time. We can do two things at the same time: We can provide better health care and better social and economic supports to those who need them. We can treat those who can be treated and save them from despair and desperation. Simultaneously, we can protect the Charter rights and bodily autonomy of those seriously ill psychiatric patients who genuinely meet the strict criteria for medical assistance in dying.

Those two goals are not antithetical; they are, necessarily, complementary. If we fail in our duty here to respect the courts and the Constitution, then we force suffering patients to somehow find the wherewithal to go to court to fight for their rights — a process that could take years.

I want to quote the wise words of Senator Carignan from 2021, when he spoke in support of Senator Kutcher’s amendment.

The English translation is as follows:

. . . the provision in Bill C-7 discriminates against persons with mental disorders. Obviously, this will once again force the less fortunate and vulnerable to appeal to the courts to declare this bill unconstitutional. In fact, this bill will clearly be ruled unconstitutional based on Supreme Court case law.

We must avoid placing the burden of court challenges on the less fortunate. . . .

My friends, that was true three years ago, and it remains true today. I just hope we can remember why we amended Bill C-7 in the first place.

Thank you, hiy hiy.

[Translation]