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Senators in the Senate in Ottawa, on Nov. 23, 2021.Adrian Wyld/The Canadian Press

Jocelyn Downie is a professor emeritus at Dalhousie University’s faculties of law and medicine.

The Senate is facing an institution-defining question this week: should it allow another delay to the expansion of medically assisted death for patients with mental illnesses? Will the Senate defer to the House of Commons in passing Bill C-62, or will it respect the Charter and the rights of people with mental disorders and reject the legislation?

Canada’s current medical aid in dying (MAID) law contains an exclusion clause denying access for people with mental disorders as their sole underlying medical condition. This exclusion was due to be repealed in March, 2023, and was then delayed another year, to March, 2024. However, Bill C-62 seeks to extend that exclusion for an additional three years, to March, 2027. It does so in a way that is unconstitutional.

The current law limits the Charter rights of people with mental disorders. It restricts their ability to choose to end their enduring and intolerable suffering caused by a serious and incurable disorder with the assistance of a physician or nurse practitioner (violating their Section 7 Charter right to liberty and security of the person). Even if they fulfill the legal eligibility criteria, it denies them access to a health service that is available to others because their condition happens to be a mental disorder (their Section 15 right to equality).

Governments are allowed to limit Section 7 rights if they do so “in accordance with the principles of fundamental justice.” One of these principles is “overbreadth” – does the law restrict the rights more than it needs to in order to achieve its goal? They are also allowed to limit any of the rights if doing so is “demonstrably justified in a free and democratic society.” However, when we examine Bill C-62 to see if it impairs people’s rights as little as possible, it fails to pass that test.

The government could have crafted legislation that balanced its objectives with the rights of people with mental disorders in a more narrowly tailored way. The existing case law on MAID offers a solution to the rights violation at issue. The government’s legislation should have included exemption orders, whereby people with mental disorders who meet all of the other criteria can go to court for judicial authorization to access MAID.

Exemption orders are not a new idea. They already exist in other contexts within the Criminal Code. They are also analogous to what courts fashioned as a remedy in the two main MAID cases: Carter and Truchon.

In Carter, the Supreme Court of Canada found that the blanket prohibition on MAID was unconstitutional. However, to give the government time to get ready for the arrival of MAID, it suspended its ruling for one year. When the government eventually needed a bit more time, the court granted a further extension but added that individuals who met the eligibility criteria set out in their decision could go to court for judicial authorization of MAID.

In Truchon, Quebec Superior Court Justice Christine Baudouin concluded that one aspect of the government’s MAID law was unconstitutional – the requirement that natural death had to be “reasonably foreseeable.” Like the Supreme Court, she crafted an individual court exemption process until the government redrafted its MAID law. Carter and Truchon illustrate a path to balancing the rights of Canadians against the additional time the government wants. It is constitutionally unacceptable that Bill C-62 does not include this obvious solution.

The government has acknowledged that the suffering of people with mental disorders is equivalent to that experienced by individuals with physical disorders who currently have access to MAID. In addition, the government agreed that safe individual assessments are possible and that there are clinicians with the expertise necessary to determine that the eligibility criteria and procedural safeguards have been met, including whether a mental disorder is irremediable. By their own evidence and logic, they should have included an exemption order provision in Bill C-62 to make it possible to reduce the very serious harms caused by the delay while still achieving its objectives.

They did not do so. Instead, they sent an unconstitutional bill to the Senate. In response, the Senate should meet its constitutional obligations to stand up for Charter rights and defeat the bill.

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