MAiD expansion delayed, but fight far from over

Groups battling the federal government’s expansion of MAiD to the mentally ill say the delay announced Jan. 29 is no cause to claim victory.

And a top health law expert warns grimly it’s the unelected Senate that might force Canadians to accept medical killing of the mentally ill.

Trudo Lemmens, a professor in health law at the University of Toronto and one of the legal experts invited to present to Parliament’s special joint committee on MAiD, cautioned that “zealous” individual senators could act even if the Trudeau government loses its political appetite for the fight over MAiD expansion.

“We will have to see how the Senate reacts since some senators have shown a remarkably zealous commitment to expansion, and may try to block at the Senate level a law implementing the (joint committee’s) recommendations,” said Lemmens.

An advocate for Indigenous people opposed to pushing MAiD further emphasizes the fight is far from won just because of a pause in the legislative action.

“It’s not like a win or anything,” Neil Belanger, director of the British Columbia Aboriginal Network on Disability Society (BCANDS), said. “If it’s shut down for two years, you’ll have those pro-MAID groups working for two years.”

Belanger warned that advocates for doctor-delivered death can be counted on to unleash a full court public relations press aimed at pressuring Ottawa to proceed with the now-paused legal expansion.

“These guys will take whatever time they get, and they’ll be planning a better strategy,” he predicted. “They’ll do their PR work, and they’ll hope that it’s out of sight, out of mind for people. And largely it will be.”

The Special Joint Committee on Medical Assistance in Dying (AMAD), which was tasked with assessing Canada’s readiness to provide MAID in cases of mental disorder, issued its 66-page report on the first day of the new parliamentary session. The 15-person committee concluded “the medical system in Canada is not prepared for medical assistance in dying where mental disorder is the sole underlying medical condition.”

“It should not be made available in Canada until the minister of health and the minister of justice are satisfied, based on recommendations from their respective departments and in consultation with their provincial and territorial counterparts and with Indigenous peoples, that it can be safely and adequately provided.”

Following the committee report’s release, Health Minister Mark Holland told reporters that though the timeline has been lengthened, the government intends to move forward with implementation.

“We are talking about people who have been for decades trapped in mental torture, being in horrific situations where they have tried everything and have exhausted all avenues and under their own recognisance are saying that they want access to MAiD.”

The announced delay represents a second legal postponement. The first was set to expire on March 17. No new date has been announced for the legislation to be enacted, although sources have told Radio-Canada the government is not expecting the expansion to take place before the next federal election.

On the same day the report was released, three senators on the committee — Stan Kutcher, Marie-Françoise Mégie and Pamela Wallin — issued a media statement expressing support for a dissenting opinion that the committee “failed to protect Charter rights of Canadians, and ignored key evidence.”

But on both counts, legal standing and personal testimony, hundreds of briefs submitted to the committee reveal strong arguments for a permanent pause to the inclusion of mental illness as grounds for MAiD.

Lemmens, along with two other legal experts, noted in their brief that “there is no positive ‘right to MAiD’ pursuant to permissive federal criminal law.” The National Association of Catholic Nurses Canada wrote that “no attempts at ‘readiness’ can overcome basic problems with the concept.”

Phil Horgan, lawyer and special counsel to the Catholic Civil Rights League, queried the language used by the government.

“The joint committee and the minister commented on the ‘system’ not being ready for the proposed expansion. We hope that after 57,000 deaths in seven years this legislation be recognized as an unbearable and grisly expansion. The ‘system’ has gone far beyond anything contemplated by our Supreme Court. Perhaps some humility is in order.”