Last year several law professors penned an open letter to the Canadian cabinet, challenging the government narrative that it is forced by court decisions to expand Medical Assistance in Dying [MAiD] to the mentally ill.
Parliament is not forced by the courts to legalize MAID for mental illness: Law Professors' Letter to Cabinet | University of Toronto Law Library blog | Trudo Lemmens:
February 2, 2023 - "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.... 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'.... Here is [an extract from] the letter....
"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.....
"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].... 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..... 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....
"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."
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- Carter v Canada (Attorney General), 2015 SCC 5
- Ibid. at para 111.
- Ibid. at para 127.
- Carter v Canada, 2012 BCSC 886 at para 814
- Canada (Attorney General) v EF, 2016 ABCA 155
- Truchon c Procureur Général du Canada, 2019 QCCS 3792
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