Kent Roach teaches constitutional and criminal law at the University of Toronto. His most recent book is Wrongfully Convicted.
The federal government’s decision to delay eligibility for medical assistance in dying (MAID) on the basis of mental illness for another three years has won much praise from lawmakers and advocates. But it should give us all pause that extensions continue to be applied on what was supposed to be a temporary exclusion of adults who have incurable mental illnesses that produce intolerable suffering from being able to access a heavily regulated medical procedure available to all other competent Canadians.
The law in this area is complex. When Parliament enacted the current MAID regime in 2021, it excluded mental illness from all other illnesses that could provide a basis, on their own, for a competent adult to access medically assisted death. But this was not a permanent exclusion; that has never been in the law. The mental-illness exclusion was subject to a two-year delay, until March 17, 2023, to enable further study of the complex subject.
In May, 2022, that further study was completed. It recommended that the MAID regime could be extended to those for whom mental illness was a sole condition, subject to some practice and the establishment of data-collection standards.
Ottawa proposes delaying MAID expansion for patients with mental illness until 2027
But in March, 2023, Parliament enacted a law extending the exclusion of MAID on the sole basis of mental illness until March 17, 2024. At the time, then-justice minister David Lametti told the House of Commons that “a little more time” was needed. That “little more time” will now stretch to 2027.
Mr. Lametti’s Charter statement – which must by law accompany all government bills – acknowledged that even an extension to 2024 might violate the Charter rights of those excluded. Unlike with judicial postponements, affected individuals cannot receive remedies from legislative postponements without first proving that the law violates the Charter.
The Charter statement balanced this by adding that, as of March, 2024, the regime would “recognize that mental illness can cause suffering that is equal to that caused by physical illness, and it would respect the autonomy of all persons with a serious and incurable mental illness to choose MAID as a response to intolerable suffering that cannot be alleviated by means acceptable to them.”
That promise of justice likely forestalled litigation challenging the exclusion of mental illness. After all, why would lawyers challenge an exclusion set to be abolished in a year?
But earlier this week, a majority of the Joint Committee and some provincial governments claimed that specialized training has not been completed, even though the majority of the witnesses before the committee testified to the contrary.
As a result, the proposed legislation will now extend the exclusion to March 17, 2027 – well beyond the delays that courts allow, subject to judicial supervision and court-ordered remedies for individuals.
Globe Editorial: A delay is not enough: Ottawa should withdraw its MAID law for the mentally ill
This new bill will also need its own statement on Charter compliance. That should be a difficult one for Justice Minister Arif Virani to sign.
It will be easier for him to do so, however, if the government follows Senator Pierre Dalphond’s principled and humane recommendation for an immediate reference to the Supreme Court of Canada.
The reference should ask the Court two questions. First: does the blanket exclusion of mental illness from other illnesses that qualify for MAID unjustifiably violate fundamental justice and equality? Courts have already ruled that there is a need to justify limits on the autonomy of competent adults; they should consider whether the exclusion perpetuates negative stereotypes about the mentally ill as categorically incompetent.
Second: if the exclusion of mental illness is unconstitutional, does the rest of the current MAID regime provide sufficient protections so that the government can quickly repeal that exclusion? This would examine the adequacy of protections added by Parliament in 2021 for those whose death is not reasonably foreseeable: a 90-day wait, consultation with a medical or nurse practitioner with expertise in the relevant suffering and being informed of alternative means to relieve suffering.
Some may argue that the reference will cause more delay and judicialize politics. But the Court would provide answers on the merits after hearing both sides of the debate – and well before March, 2027.
The federal government should not further punt this issue because it is too hot to handle or because it wishes it would just go away before an election. The fact is, last year’s promise that the exclusion of mental illness from MAID would be ended by this year has been broken. Three years more of intolerable suffering for competent adults who also have incurable mental illnesses because of an unprincipled parliamentary extension should concern us all. Justice has already been delayed and, as ever, justice delayed is justice denied.