Two new legal challenges have been launched regarding eligibility for euthanasia in Canada.  One challenge argues that the law discriminates against people with mental illness by making them ineligible for euthanasia. The other claims the law discriminates by allowing euthanasia for persons with disabilities. One lawsuit seeks to expand euthanasia. The other seeks to restrict it. Both are using arguments centered on perceived discrimination.

We’re following these cases closely as we continue striving to bring a biblical perspective on euthanasia to our government and courts.

Legislative History

In 2015, the Supreme Court of Canada struck down criminal prohibitions on assisted suicide and consensual homicide in Carter v. Canada. In response, Parliament passed Bill C-14 (2016), which legalized euthanasia and assisted suicide for people nearing natural death.

In 2019, the Superior Court of Quebec ruled that the end-of-life requirement was unconstitutional. Rather than appeal the decision, the federal government responded with Bill C-7 (2021), which expanded euthanasia and assisted suicide to people with a chronic illness or disability who are not nearing natural death. Bill C-7 was also supposed to expand eligibility for euthanasia to people with mental illness as their sole underlying medical condition, but Parliament twice delayed this. The expansion to mental illness is now scheduled to come into effect in 2027. The legal system has been used as a catalyst for expanding euthanasia in Canada. The same could happen again with these two new legal challenges.

Mental Illness Case

The first court case challenges the mental illness restriction. This challenge was filed by Dying with Dignity Canada, a national pro-euthanasia advocacy organization, along with two persons with mental illness who wish to be euthanized. One is Claire Elyse Brosseau, who has been diagnosed with Bipolar I disorder, experiences disordered eating, has a substance use disorder in remission, and has a significant history of trauma. The other is John Scully, who has been diagnosed with severe chronic PTSD and major depressive disorder. In both cases, their doctors consider their illnesses to be “grievous and irremediable,” that is, serious and incurable, which would make them eligible for euthanasia were it not for the mental illness exclusion.

The Arguments

The applicants note that people with mental illness are allowed to access euthanasia if they also have a serious and incurable physical illness, disease, or disability.  The applicants argue that suffering from mental illness can be just as severe, enduring, and irremediable as suffering caused by physical health conditions. They claim that the mental illness exclusion arbitrarily prolongs the suffering of Canadians who suffer from mental illness but who lack a physical illness or disability.

The applicants argue, first, that the mental illness exclusion violates section 7 of the Charter, which guarantees the right to life, liberty, and security of the person. In particular, their arguments focus on the right to liberty, contending that the decision to be euthanized is of fundamental personal importance and thus a matter of personal dignity. They also argue that the mental illness exclusion violates the security of the person “by imposing prolonged physical and psychological suffering.” The law, they claim, prohibits individuals from ending their suffering when and how they want.

Next, the applicants argue that the mental illness exclusion violates section 15 of the Charter, which guarantees the equal protection and benefit of the law to all. The mental illness exclusion, they argue, creates a distinction between individuals suffering from mental illness (who are ineligible for euthanasia) and those suffering from physical illness, diseases, or disabilities (who are eligible). These distinctions, the applicants claim, exacerbate the disadvantages and stigma of mental illness.

Disability Case

The second case is a challenge of the current law allowing euthanasia for people who are not dying. This case was filed by four not-for-profit organizations: Inclusion Canada, the Indigenous Disability Canada/British Columbia Aboriginal Network on Disability Society, the Council of Canadians with Disabilities, and the DisAbled Women’s Network Canada. In addition to these organizations, two individuals are named. K.C., first, has both physical and mental disabilities. Since  Bill C-7 became law, K.C.’s experience is that eligibility for euthanasia has caused harm, especially in healthcare settings. The other individual is Kathrin Mentler, who lives with chronic pain and a history of depression and suicidality. In 2023, Mentler went to the hospital following a mental health crisis and was advised about MAiD, even though she did not ask for information about how to die.

The Arguments

The applicants note that all people eligible for euthanasia are persons with disabilities, since a person with a grievous and irremediable condition is, by definition, a person with a disability. However, the original euthanasia law under Bill C-14 made people who were not dying ineligible for euthanasia. This distinction protected persons with disabilities against premature death, and avoided undermining suicide prevention. Allowing euthanasia for people who are not dying, however, inappropriately distinguishes between people with disabilities and those without.

The applicants argue that Bill C-7 violates section 15 of the Charter, which guarantees the equal protection and benefit of the law without discrimination based on disability. Since euthanasia is exclusively offered to persons with disabilities, it stigmatizes and devalues the lives of people with disabilities. Euthanasia is presented as a solution to the suffering associated with disability, and the law does not require that patients try treatments or supports. As a result, Bill C-7 may also induce persons with disabilities to end their lives as a response to suffering.

Many people, with or without disabilities, suffer from marginalization, social isolation, poverty, or homelessness. But the consequence of Bill C-7 is that only people with disabilities are offered euthanasia as a solution to suffering. An able-bodied person suffering from poverty or homelessness may not be euthanized. Further, Bill C-7 undermines trust in care providers, as disabled persons fear that a provider will suggest death as a solution to their suffering. Such a suggestion can shape a person’s perceptions of their own value and dignity and make them feel like a burden. Making euthanasia an option also undermines the quality of the care they receive.

The applicants also argue that Bill C-7 violates section 7 of the Charter, which guarantees the right to life, liberty, and security of the person, by increasing the risk that persons with disabilities will die prematurely. People who might not have contemplated suicide may choose euthanasia because it is presented as an accessible and effective solution to suffering. Indeed, it is presented as medical care and supported by their government and so, by extension, their society.

The application states, “A law that allows people with disabilities to access state-funded death in circumstances where they cannot access state-funded supports they need to make their suffering tolerable is grossly disproportionate. There is no deprivation that is more serious and more irrevocable than causing someone who is not otherwise dying to die.”

Moving Forward

Both these cases discuss how the law differentiates between groups of people in determining eligibility for euthanasia. While one argues that it is discriminatory not to allow euthanasia for mental illness, the other argues that it is discriminatory to allow euthanasia for persons with disabilities.

If the Court in either case determines that the law is unconstitutional, the Attorney General would likely appeal. But the government might simply amend the law to align with the lower Court’s decision. If the law is deemed constitutional in either case, the applicants may seek to appeal the decision to a higher court. Both cases could very well end up at the Supreme Court of Canada, years from now. They cannot both succeed.

As Christians, we recognize that these cases are happening because Canada has opened the door to killing as a solution to suffering. We need to continue to show that euthanasia must never be a solution for suffering, whether that suffering is due to mental illness, disability, or terminal illness.  While Canadians can only advocate in the courts as parties or interveners in a particular case, we encourage all Christians to consider how to advocate for life as ordinary citizens.

Whatever the outcome of either case, Parliament will have the opportunity to respond with new laws. So let us continue to remind legislators of the need to care for, not kill, those who are suffering.  As mentioned in a previous article, ARPA Canada’s Care Not Kill campaign calls on Parliament to repeal Bill C-7 and end euthanasia for those who are not dying. This is an important step towards better euthanasia law in Canada. Consider signing a petition, emailing your Member of Parliament, writing to your local newspaper, or putting up a bus ad in your community. Head to carenotkill.ca for more information and to take action.

When Parliament legalized euthanasia and assisted suicide in 2016, many warned of a slippery slope. First legalized as a last resort for those nearing natural death, euthanasia and assisted suicide have since been expanded to people not nearing natural death (2021) and to those with mental illness (scheduled for 2027). In the meantime, safeguards have been removed. Between 2016 and 2022, nearly 45,000 Canadians were euthanized.

Professor John Keown, comparing euthanasia in the Netherlands and Canada, writes, “In 40 years, the Dutch have slid down the slippery slope. In fewer than 10, Canada appears to be veritably skiing.”

Bill C-7

Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) was introduced in 2020 and received Royal Assent in March 2021. The bill removed the requirement that a person’s natural death be reasonably foreseeable, thus making persons with non-terminal illness eligible for euthanasia. It also created two different sets of safeguards, one for those who were nearing natural death, and another for those who were not. If a person is nearing natural death, they can be fast-tracked for euthanasia with fewer safeguards. If a person is not nearing natural death, there are a few additional safeguards such as a 90-day waiting period.

The Senate added a clause to Bill C-7 to permit euthanasia for mental illness as the sole underlying medical condition, starting in March 2023. That was later delayed until 2024, and then until 2027.

Care Not Kill Campaign

Since the mental illness expansion had not yet come into effect, ARPA Canada’s Care Not Kill campaign focused from 2021 to early 2024 primarily on cancelling that expansion. Many of you, our supporters, got involved in that campaign by delivering flyers, writing emails to your federal representatives, sending submissions to committee, or running bus ads. You sent a clear message that euthanasia should never be a solution for mental illness.

Last fall, MP Ed Fast introduced Bill C-314, which would have cancelled the plan to permit euthanasia for mental illness. Although the bill failed to pass (by only 17 votes), some members of all parties supported it. Earlier this year, nearly every province asked the federal government to delay the scheduled expansion of euthanasia indefinitely. The Conservative Party of Canada has committed to repealing this expansion if they form government following the next election. We can continue to encourage other parties to do the same.

Euthanasia should never be a solution for suffering. Euthanasia and assisted suicide encourage a culture of neglect for suffering, elderly, disabled, and vulnerable people. Canada should promote suicide prevention and life-affirming care for all. Given the successful pushback across Canada on the mental illness expansion, now is the time to call for additional safeguards in the law.

Repeal C-7

The Care Not Kill campaign is asking the government to repeal Bill C-7 entirely. That would not only cancel the mental illness expansion, but would end euthanasia for those who are not dying. It would also restore other safeguards that Bill C-7 removed.

Bill C-7 changed Canada’s law on assisted suicide to offer it as an escape from what is perceived as a difficult life, or even a difficult period of life. Only people with disabilities or chronic illness are offered assisted suicide as a solution for their suffering. The able-bodied who suffer are offered suicide prevention and various other supports. The implicit message is that some lives matter more than others. We need to call on the government to promote life-affirming care for all.

Just as we advocated for the repeal of euthanasia for those with mental illness, we can call for the repeal of euthanasia for those with disabilities or non-terminal illnesses.

Next Steps

With a federal election looming next year, we have an opportunity to ask candidates and MPs how they will protect vulnerable Canadians from euthanasia. We can encourage candidates to talk about the issue during their campaigns, and we can call on the next government to pass legislation to reverse Canada’s slide down the slippery slope when it comes to euthanasia. Stay tuned over the coming months for updated Care Not Kill materials and action items.

The next phase of the Care Not Kill campaign begins after the extension of the deadline for mental illness and euthanasia;

Please pray for this special opportunity that has been put before our colleague Mike and his wife Jennifer.

On March 17, 2021, Parliament passed Bill C-7, which removed various safeguards and dramatically expanded access to assisted suicide to those who are not dying. In the law, assisted suicide is euphemistically referred to as medical assistance in dying (MAiD). Unless Parliament amends the law, starting March 17, 2023, people with mental illness as their only medical condition will be eligible to access physician-assisted suicide. Following the passage of Bill C-7, Parliament commissioned an Expert Panel consisting of experts in clinical psychiatry, MAiD assessment and provision, law, ethics, health regulation, and mental health care to study the issue of MAiD for those with mental illness. The Panel’s mandate consisted of two components:

  1. Make recommendations with respect to protocols and guidance for the assessment and provision of MAiD for those with mental illness, and
  2. Make recommendations surrounding additional safeguards that could be included in law around the issue of MAiD for mental illness.

The Panel’s official report was released earlier this month. The report begins by noting that the term ‘mental illness,’ as used by Parliament, is a vague term. Instead, the experts use the term ‘mental disorder,’ which is a standard clinical term that provides more clarity. The Panel notes that, while their focus was on mental disorders, the recommendations within the report could be applied to other cases as well.

The Panel primarily works through four issues in the report. First, they go through the legal and policy background of the issue of MAiD. Next, they provide a scope and summary of issues specific to mental disorders and MAiD. They then provide 19 recommendations and finally discuss further issues for consideration. We want to highlight a few key details from each of these sections.

Legal and Policy Background

The Panel sets the stage with some very telling lines in the first section of their report. They note that some people will argue no evidence currently exists to indicate that the benefits of providing MAiD for mental disorders outweigh the harms. However, the Panel does not see the possibility of future recovery as a reason to withhold MAiD. They state: “In permitting MAiD, society no longer requires everyone to accept that life is a benefit in all circumstances. When it is, and when it is not, is a question for the individual requester according to their values and in those circumstances permitted by law” (p. 20, emphasis added). This is a sad statement of our society’s perspective on the gift of life. “Those circumstances permitted by law” technically still prohibit suicide, but when physician-assisted suicide is permitted, the line becomes blurred. Suicide, if help is requested from a medical practitioner, has been completely reframed as a rational and respectable choice for autonomous “individual requesters” to make.

Another issue worth noting is that the Panel fails to address the question of whether MAiD for mental illness should be permitted at all. The federal government instructed the Panel to simply provide recommendations for safeguards, not to discuss whether it should be permitted, even though there is still significant concern among medical professionals as to whether it should be permitted at all. In the preamble to Bill C-7, the government noted that “further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness.” However, the mandate to the Expert Panel shows that the government was actually uninterested in “whether it is appropriate” at all.

Scope and Summary of Issues Specific to Mental Disorders and MAiD

The Panel discusses four major concerns in providing MAiD to those with mental disorders. The first issue is incurability and irreversibility. Many medical professionals argue that there is no evidence that mental illness is incurable or irreversible. It is difficult to predict the future of a mental illness or to prove that a patient will be unable to recover even with the help of various treatments. However, the Panel concludes that responsiveness to treatments can be predicted based on how the patient has responded to past treatments. They state that this is done in other areas as well. For example, psychiatrists fill out long-term disability forms for patients even though they do not know the actual long-term outcome of that patient’s mental disorder. However, this comparison fails to differentiate between a simple insurance form and a serious, life-ending procedure.

Another issue is that of capacity, and whether people with mental disorders can make an informed decision to consent to MAiD. The Panel admits that it can be difficult to determine capacity. If capacity cannot be determined, medical professionals should not provide MAiD without further information. However, they state MAiD must be provided on a case-by-case basis and cannot be denied simply because of difficulty in assessing capacity.

The next issue is that of suicidality. The Panel notes that there is a strong association between suicide and mental disorders. Specifically, mood disorders, personality disorders, and substance use disorders are most commonly associated with completed suicide. In Belgium and the Netherlands, mood disorders and personality disorders are among the most common mental disorders for which patients request euthanasia. One end-of-life clinic in the Netherlands states that their assessment process for patients with mental disorders takes an average of ten months. However, in Canada, the Panel argues that the 90-day waiting period currently required by law will be sufficient to ensure that a patient is not suicidal by the time MAiD is provided. This discussion is, in many respects, absurd. Any patient requesting assisted suicide is, in fact, suicidal because they are expressing a wish to die; this is the definition of being suicidal. To deliberate and debate over whether a patient is “suicidal” or not, when the end result of determining that the patient is not suicidal results in that patient ending their life, is absurd and a bizarre contradiction.

The Panel argues that medical professionals already have to deal with patients who withdraw or reject lifesaving treatment and compares this to the question of euthanasia. They note that suicide assessments are already part of the MAiD process and, if someone has a history of suicide attempts or mental disorder, medical professionals typically initiate suicide prevention procedures. However, the Panel also states that “[i]n allowing MAiD [for mental disorders], society is making an ethical choice to enable certain people to receive MAiD on a case-by-case basis regardless of whether MAiD and suicide are considered to be distinct or not” (p. 66). In other words, they recognize and accept that MAiD may be suicide, but are willing to forego suicide prevention on a case-by-case basis.

Finally, the Panel raises concerns about people seeking access to MAiD because they are vulnerable in other ways, such as racialized groups, people with disabilities, or the poor. On the one hand, vulnerable patients are concerned that MAiD will be seen as a solution to their other unmet needs. On the other hand, they are concerned that their MAiD requests will not be taken as seriously as they deserve. The Panel suggests that there must be equal access to resources, as well as respect for autonomous decisions. One recommendation states that medical professionals should make sure patients are presented with any additional means available to relieve suffering and that patients should have access to social supports such as housing and income supports as means to relieve suffering. However, they argue that the vulnerable should not be systematically excluded from MAiD.

Panel’s Recommendations Regarding Mental Disorders and MAiD

In light of their various conclusions, the panel made a list of 19 recommendations for the government. Although the report is focused on mental disorders, they state that the recommendations can apply to any situation where the issues listed above might be present. They do note some concerns with the lack of clarity in the current guidelines in the Criminal Code, but conclude that the “recommendations can be fulfilled without adding new legislative safeguards to the Criminal Code.” The recommendations include:

Without going into detail on each of these recommendations, it is important to note a few specifics. Some of the recommendations within this report could be helpful if implemented. For example, Recommendation #16 suggests an oversight committee ensure that MAiD requests satisfy the legal requirements. Additionally, Recommendation #18 states that data collection should be improved. Currently, the data around MAiD is minimal and should be much more specific to help find ways to protect the vulnerable. Additionally, various recommendations consider the opportunity for further research and training to identify gaps in the legislation.

Further Considerations from the Panel 

The Panel concludes by noting three issues for further consideration. The first has to do with elderly people who also have mental disorders. Under the current law, those whose death is reasonably foreseeable are placed on Track 1 for MAiD, meaning it can be administered sooner and has fewer safeguards. Those whose death is not reasonably foreseeable will be placed on Track 2, with a 90-day waiting period for MAiD and other safeguards. An elderly person with a mental disorder could be placed on either track, and the Panel wants further consideration given to how much flexibility should be given to MAiD assessors to place patients on Track 1 versus Track 2.

Second, the Panel considers people with intellectual disabilities. The Panel states that they lack expertise on this topic, so further research is required.

Finally, the Panel considers people who request MAiD and are incarcerated. This raises a whole new set of concerns as prisons often have higher rates of suicide than the general population and various other factors are involved. Additionally, data about prisoners accessing MAiD is limited and again, further research is required.

ARPA Analysis: Three Main Problems

Despite some recommendations in the report that may have good components, the first problem is that the recommendations have no teeth. Essentially, the recommendations are useless because they suggest no legislative change to protect the vulnerable. One problem with the current legislation is its use of vague terms and lack of safeguards. The recommendations in this report entirely fail to address the lack of safeguards. While the Panel seeks to provide guidance on terms, it will ultimately fall on individual regulatory bodies to develop their own standards of assessment and implementation, which will allow them to do as they wish, and will differ from province to province.

Second, the recommendations of the Panel do not provide needed clarity on how to prevent abuse. For cases that are difficult to discern, they recommend better interpretations of wording, oversight, and training. However, it is still left to an individual, case-by-case basis where medical professionals determine who can and cannot die. There remains no effective oversight to ensure that medical professionals are interpreting guidelines appropriately and providing proper treatment and suicide prevention initiatives.

Finally, the Panel notes concerns determining whether patients are capable of informed consent and whether they are being pressured into “choosing” MAiD. They suggest further research and training in various areas but then entirely disregard these concerns. If further research is required, that should happen before MAiD is expanded, not after the fact when harm is already done. The federal government already pushed off further study about whether those with mental disorders should be eligible for MAiD at all and have failed to even discuss the issue. The Panel concludes their study by stating, “This report is the beginning of a process, not the end” (p. 84). However, the government continues to expand MAiD without considering the negative effects or possible safeguards to mitigate those effects.

Conclusion

The Panel argues that MAiD should continue to be provided on a case-by-case basis in difficult situations, including cases of mental disorder, and we ought to simply trust that safeguards are being followed and patients are making free, informed choices to access MAiD. However, the Panel failed to address the instances of abuse that have already been seen across Canada. There are no further recommendations to fix gaps in the law and no adequate protection for Canadians with mental disorders. The recommendation the Panel ought to have made, but didn’t, is to stop the expansion of MAiD to those with mental disorders.

Where the panel has failed, we need to step up. Join our carenotkill.ca campaign to advocate for the protection of the lives of your loved ones and neighbours who struggle with mental illness or suicidal thoughts. You can make a difference by contributing to this campaign, to raise awareness, and tp recruit others to join the cry for Parliament to fix this law. May God have mercy and use us in this effort.

We recently launched an updated campaign at CAREnotKILL.ca, calling on the federal government to repeal the expansion of assisted suicide to those with mental illness.

There is only one year left to make this change!

Get a group of friends together and you to distribute the CNK mailbox flyers in a neighbourhood near you.

Supporting those with mental illness means offering suicide prevention and supportive care for everyone.

These items are all free of charge.

Every January, Canadians participate in Bell Let’s Talk Day. This day seeks to combat the stigma that surrounds mental illness and is an important recognition of the need for accessible mental health support. It’s an opportunity for Canadians who are struggling with their mental health to be seen and heard. It’s an opportunity for others to listen, learn, and care. As a recent Bell Let’s Talk video puts it, “Keep being there. Keep listening.”

Mental illness affects a wide cross-section of Canadians. By age 40, 50% of Canadians have, or have had, a mental illness. Mental health supports for adults, youth, and children have rightly become a major conversation point in Canada. We have seen real progress in improving openness and reducing the stigma around mental illness.

Suicide prevention is a critical part of supporting mental health. Last summer, the roads to our Ottawa office were blocked for the better portion of a day because a person threatened to jump off one of the nearby buildings. The response and resources provided by local emergency services to help this person were appropriate and necessary – it is right to put significant effort into preventing suicide and offering real help for those who are struggling.

But at the same time, Parliament passed laws that will harm those who suffer from mental illness. Although our government says they prioritize mental health supports, they will soon allow Canadians who suffer from mental illness to end their life through medical assistance in dying (also referred to as MAiD, euthanasia, or assisted suicide). This provision, included in Bill C-7, will come into effect on March 17, 2023.

How can we advocate for mental health support for those suffering from mental illness while at the same time assisting suicide for the very same people? Clearly, there is a huge inconsistency here.

In March 2021, a video circulated of a young woman describing her struggle with mental illness and her sadness about the proposed expansion of euthanasia to people like her. She said, “As someone who struggles with mental illness, I don’t need someone to tell me how to die. I need someone to tell me to stay.”

Canada’s Medical Assistance in Dying law wrongly normalizes suicide as a solution for suffering. Offering suicide to those who are struggling with mental illness tells them that their life is not as valuable as the lives of Canadians who do not struggle in the same way. We cannot make real efforts at suicide prevention while offering assisted suicide as a solution for mental illness.

Just last month, a committee of the National Assembly of Quebec studied the issue and advised against expanding MAiD to those with mental illness. In their report, they state that our society needs to offer suicide prevention to those who need it, and they share the concern that expanding MAiD into the area of mental illness could undermine such efforts by telling those with mental illness that death is a legitimate option for them.

Parliament still has time to repeal the clause to expand MAiD eligibility to those with mental illness. Since the Senate added this clause without debate by the House of Commons and without time to gather expert testimony or do a committee study, the clause provided time – until March 17, 2023 – for the government to study the issue of MAiD for people with mental illness before the clause comes into effect. Our leaders have time to right this wrong, and they need to be called on to do so.

We have one year to make our voices heard on this. We need to encourage MPs to introduce bills or motions to debate, discuss, and delete the section of law allowing for the expansion of medically assisted death to those with mental illness. Canada should focus on increasing mental health supports and improving access to those supports instead of offering MAiD, not alongside MAiD. Those who are struggling need help, not MAiD, and our government needs to hear that loud and clear.

Bell Let’s Talk Day is a powerful initiative that has been a force changing the way mental illness is perceived in Canada. Let’s keep that momentum going: all year long, let’s talk about mental illness. Let’s talk about supporting those who are struggling and about access to care. Let’s talk about listening to and reaching out to those who need someone to tell them to stay. Let’s talk about changing the law so that all Canadians, including doctors, will be united in telling those who are struggling with mental illness, we want you to stay.

In this special edition we are excited to be joined by some very special guests, a Member of Parliament, a Senator, a health care provider, and two individuals personally affected by disease and disability. We’re getting their reactions to the outcome of Bill C-7 for Canada.

What happens next with Bill C-7? What is ARPA up to when its not advocating on issues like euthanasia and conversion therapy? A letter to the RCMP regarding Mindgeek/Pornhub. And the word of the day – enthusiastic!

Covid-19 has revealed existing gaps in elder care in Canada, and also created new ones. We will discuss the Canadian elder care context, lay out a biblical perspective on elder care, and explain how to engage in advocacy on this issue as a Christian.

Guest Speakers: Anna Nienhuis and Levi Minderhoud from ARPA Canada