Justice Minister David Lametti announced today the introduction of a bill which would delay by one year, until March 2024, the scheduled implementation of MAID for sole reasons of mental illness. Until today, the federal government had repeatedly suggested it was bound by 'the courts' to expand MAID and to make MAID also available for persons whose sole underlying medical condition is mental illness. Minister Lametti even stated in an interview for a recent investigative documentary of CBC's The Fifth Estate, which revealed troubling components of the current MAID practice, that the Supreme Court had recognized 'a right to suicide' and that MAID was a 'species of suicide'. He made similar statements in an interview for a podcast with Althia Raj of the Toronto Star. With some colleagues of other law faculties, we drafted a letter to Prime Minister Trudeau, Ministers Lametti, Duclos, Qualtrough and Bennett, to challenge this problematic and in our view unfounded rhetoric of 'our hands are tied by the courts'. We urge the government to take the time "to conduct a serious, inclusive, and evidence-based re-evaluation of the appropriateness of expanding MAiD" and "to suspend this implementation." In one day, the letter was signed by 28 law professors of the Universities of British Columbia, Dalhousie, Manitoba, Montreal New Brunswick, Ottawa, York (Osgoode Hall Law School), Thompson River, Toronto and Windsor. Colleagues can contact me to have their names added. The original letter went out with the first 25 signatories below.
Here is the letter:
The Right Honourable Justin Trudeau, Prime Minister of Canada; The Honourable David Lametti, Minister of Justice and Attorney General of Canada; The Honourable Jean-Yves Duclos, Minister of Health; The Honourable Carla Qualtrough, Minister of Employment, Workforce Development and Disability Inclusion; The Honourable Carolyn Bennett, Minister of Mental Health and Addictions
February 1, 2023
Re: Legal Claims about the Need for Legalizing MAiD for Persons Whose Sole Underlying Medical Condition is Mental Illness
Dear Prime Minister, dear Ministers Lametti, Duclos, Qualtrough and Bennett,
We write as law professors to contest the assertion of the Liberal government that legalizing MAiD for reasons of mental illness has been mandated by our courts. While we welcome the federal government’s announcement to halt the implementation of the legislative sunset clause, we are concerned about statements that this is only a delay, and is not treated as an opportunity to conduct a serious, inclusive, and evidence-based re-evaluation of the appropriateness of expanding MAiD.
We disagree as law professors that providing access to MAiD for persons whose sole underlying medical condition is mental illness is constitutionally required, and that Carter v Canada AG[1] created or confirmed a constitutional right to suicide, as Minister Lametti has repeatedly stated. Our Supreme Court has never confirmed that there is a broad constitutional right to obtain help with suicide via health-care provider ending-of-life.
It suffices here to point to some key elements to challenge the claim that there is a clear constitutional duty to create access to MAiD for persons whose sole underlying condition is mental illness. First, the Supreme Court explicitly stated in Carter, after hearing evidence from allegedly problematic euthanasia cases in Belgium, that “euthanasia for minors or persons with psychiatric disorders or minor medical conditions” would “not fall within the parameters suggested in these reasons”.[2] The Court further emphasized that “[t]he scope of [its] declaration is intended to respond to the factual circumstances in this case” and that it made “no pronouncement on other situations where physician-assisted dying may be sought.”[3]
Carter did not involve plaintiffs with mental illness, but with terminal neurogenerative diseases. The trial court in Carter further explicitly stated that it is “problematic to conflate decision-making by grievously and irremediably ill persons about the timing of their deaths, with decision-making about suicide by persons who are mentally ill or whose thinking processes are affected by substance abuse, trauma or other such factors.”[4]
Second, while the Alberta Court of Appeal decision in Canada (A.G.) v E.F.,[5] and the Quebec Superior Court decision in Truchon v Canada AG,[6] interpreted Carter as not excluding (MAiD for) mental illness, they did not rule on the constitutionality of a legislative exemption for mental illness. Moreover, these decisions are not binding in other provinces, and were not appealed to the Supreme Court of Canada or the Quebec Court of Appeal respectively. In E.F., the Alberta Court of Appeal further explicitly stated: “Issues that might arise regarding the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted.” The case can therefore hardly be invoked as a precedent confirming the constitutional need to legalize MAiD for mental illness.
With respect to the Truchon decision, the plaintiffs were not requesting MAiD based on mental illness, and any comments by the trial judge about MAiD for sole reasons of mental illness should be considered obiter dicta. We note that Minister Lametti’s decision as Attorney General not to appeal Truchon and to simply amend the legislation was unprecedented.
In the absence of binding precedent, it is premature to argue that the Charter requires access to MAiD for persons whose sole underlying medical condition is mental illness. It is in our view also reckless to suggest that a constitutional right to MAiD should and would be recognized by our Supreme Court when there has been no meaningful review of the evidence suggesting that psychiatrists can predict for whom mental illness will be irremediable, the impact on suicide prevention, the impact on the health care and lived experience of persons experiencing mental illness, and the challenge of balancing access to MAiD with the protection of the life of those who are otherwise not approaching their natural death. In fact, there is for that reason on the contrary a strong argument to be made that the Charter requires adequate and equal protection against premature death of all persons with disabilities. This is what about all Canadian disability organizations have argued.
For all these reasons, we strongly object to suggestions that MAiD for mental illness needs to be made available as a matter of constitutional right, and support a suspension and review, not just a delay, of further expansion of MAiD.
Yours sincerely,
Trudo Lemmens Professor and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto; Isabel Grant, Professor, Peter A. Allard School of Law, University of British Columbia; H. Archibald Kaiser, Professor, Faculty of Law and Department of Psychiatry, Faculty of Medicine, Dalhousie University; Mary Shariff, Associate Professor, Faculty of Law, University of Manitoba; Elizabeth Sheehy, Professor Emeritus, Faculty of Law, University of Ottawa; C. Tess Sheldon, Assistant Professor, Faculty of Law, University of Windsor; Roxanne Mykitiuk, Professor, Osgoode Hall Law School, York University; Kerri Froc, Associate Professor, Faculty of Law, University of New Brunswick; Brandon Trask, Assistant Professor, Faculty of Law, University of Manitoba; Michelle Gallant, Professor, Faculty of Law, University of Manitoba; Geoffrey Sigalet, Assistant Professor, Centre for Constitutional and Legal Studies, University of British Columbia Okanagan; Brian Bird, Assistant Professor, Peter A. Allard School of Law, University of British Columbia; Janine Benedet KC, Professor, Peter A. Allard School of Law, University of British Columbia; Bill A. Bogart, Distinguished University Professor and Professor of Law (Emeritus), Faculty of Law, University of Windsor; Darcy MacPherson, Professor, Faculty of Law, University of Manitoba; Sophia Moreau, Professor of Law and Philosophy, Faculty of Law, University of Toronto; Richard Moon, Distinguished University Professor, Faculty of Law, University of Windsor; Ravi Malhotra, Professor, Faculty of Law, Common Law Section, University of Ottawa; Alan Brudner, Albert Abel Professor of Law Emeritus, Faculty of Law, University of Toronto; Lynda Collins, Professor, Faculty of Law, University of Ottawa; Mohammad Fadal, Professor, Faculty of Law, University of Toronto; Pascale Chapdelaine, Associate Professor, Faculty of Law, University of Windsor; Karine Millaire, Professeure Adjointe, Faculté de droit, Université de Montréal; Patrick Garon-Sayegh, Professeur Adjoint, Faculté de droit, Université de Montréal; Audrey Macklin, Professor and Rebecca Cook Chair in Human Rights Law, Faculty of Law, University of Toronto; Bruce B. Ryder, Associate Professor, Director Clinical Legal Education, Osgoode Hall Law School, York University; Jeffrey G. MacIntosh, Professor, Faculty of Law, University of Toronto; Martha Shaffer, Professor, Faculty of Law, University of Toronto; Natasha Bakht, Professor and Shirley Greenberg Chair for Women and the Legal Profession, Faculty of Law, University of Ottawa; Debra M. Haak, Assistant Professor, Faculty of Law, Queen's University; Ruby Dhand, Professor, Faculty of Law, Thompson River University; Neil Seeman, Senior Fellow, Dalla Lana School of Public Health, University of Toronto.
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[1] Carter v Canada (Attorney General), 2015 SCC 5
[4] Carter v Canada, 2012 BCSC 886 at para 814
