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Ottawa to wait until after next federal election to expand assisted dying eligibility

OTTAWA — Adults who want to use a mental illness as the sole basis for an assisted death will likely have to wait at least another three years, the Liberal government said Thursday.
Federal Health Minister Mark Holland makes an announcement in Calgary on Thursday, Dec. 21, 2023.  THE CANADIAN PRESS/Todd Korol

OTTAWA — Adults who want to use a mental illness as the sole basis for an assisted death will likely have to wait at least another three years, the Liberal government said Thursday.

Health Minister Mark Holland introduced legislation that, if passed, would postpone the government's plan to expand the medical assistance in dying program until March 2027.

It would be the second such delay for the expansion, after Liberals added a year to the timeline just before the change was supposed to take effect last March. 

Now, the next implementation date is being pushed well past the next federal election, which must happen no later than fall 2025. 

Should he form the next government, Conservative Leader Pierre Poilievre has pledged to scrap the expansion altogether.

Almost three years have passed since the Liberals first passed a law that removed the exclusion of mental disorders as an acceptable basis for an assisted death.

But Holland said the country is still not prepared. 

"This is extremely challenging. This is enormously sensitive," he said. 

Holland and Justice Minister Arif Virani said they agreed with a special parliamentary committee when it concluded Canada was not ready to change the rules. 

Doubts persist about the number of suitably trained medical professionals in the country, as well as how clinicians would distinguish temporary suicidal ideation from an untreatable mental disorder, or know whether someone with a condition is likely to improve.

Holland said every province and territory had misgivings, and the government decided on a three-year delay in order to provide them extra time. 

Nearly all of them had asked the government to impose an indefinite pause, but Holland called that a non-starter because it would remove any incentive to get ready at all. 

"There has to be an imperative to move towards a condition that recognizes the equivalency between mental and physical suffering," he said. 

"It's an indication that the systems need to move toward readiness."

Canada could also open itself up to a legal challenge if it doesn't expand eligibility, Holland added. 

The Supreme Court of Canada ruled in 2015 that adults with a "grievous and irremediable medical condition" have the right to an assisted death, which led the Liberal government to introduce its initial law in 2016. 

In 2019, a Quebec court ruled it was unconstitutional to require that a person's death be reasonably foreseeable to make them eligible for assisted dying. 

The Liberals updated the law to reflect the decision in 2021. As part of that process, the government accepted a Senate amendment to remove the exclusion of people whose sole underlying condition is a mental illness. It inked in a two-year period for systems and practitioners to get ready. 

Senators had argued that excluding them was a violation of their rights. 

But some legal experts have since pushed back, saying there is nothing in the law that compels the country to further expand eligibility.

Quebec passed its own provincial law last year to exclude adults from accessing a medically assisted death solely for a mental disorder.

A spokesperson for the Manitoba government says it welcomes the three-year extension, as did British Columbia's. Alberta, meanwhile, maintains its belief that assisted dying for medical disorders doesn't belong in health care at all. 

"While we are pleased to know this is not happening next month, our call remains on the federal government to indefinitely delay and stop this policy from ever existing in Canada," Dan Williams, its mental health and addiction minister, said in a statement. 

A Saskatchewan government spokesman said it too would continue pushing for an indefinite delay. 

The federal ministers said Thursday they don't want the policy to exist in pieces. 

"We have a unitary system with respect to criminal law in this country," Virani says. "We don't carve out exceptions on a province-by-province basis."

In a statement, Dying with Dignity Canada said it was disheartened by the delay, and despite what provinces have said, its medical professionals and regulators have said they are ready. 

The bill calls for another joint committee to study the issue again within the next two years. If the committee has any changes to recommend, it must table a report with both the Senate and the House of Commons.

It must pass by March 17, when the expansion is currently slated to take effect. The Conservatives have said they'll support the legislation but also demanded the Liberals scrap the plan altogether. 

But the bill may be in for a rougher ride in the Senate.

"There's historical precedents in the Senate for addressing some of these issues (differently) than the House addresses them," said Sen. Stan Kutcher, who sits as an Independent.

Kutcher sat on the joint committee that recommended a delay, and vehemently dissented with the majority's conclusions. 

One of the reasons the Senate exists is to "protect against the tyranny of the majority," he said. 

Kutcher and two other senators on the committee, Pamela Wallin and Marie-Françoise Mégie, took issue with both the government's decision as well as how the committee conducted its investigation. 

"There has been an about-face on the part of the government on this issue, or perhaps they were disingenuous from the beginning," Wallin said. 

While the joint committee was tasked with assessing Canada's readiness to move forward with the expansion, that was supposed to be based on strict criteria outlined by the government, the three senators argue.

Those requirements were that an accredited training program and practice standards be created and made available to clinicians, that regulations be developed to govern how data about assisted dying is collected and that an expert panel issue a report.

All those criteria have been satisfied, the senators said.

While the majority of parliamentarians on the committee concluded that the medical system in Canada is not ready, Kutcher said the committee did not actually study the medical system in Canada.

Kutcher said the recommendation to delay discriminates against people with mental disorders and deprives them of fundamental rights. 

Not so, said Virani, who insisted the delay is informed by feedback from doctors, nurses and psychiatric professionals.

For the protection of the vulnerable, he said, "we need to ensure that those safeguards are in place, that those safeguards are understood and ready to be implemented by the health care system."

This report by The Canadian Press was first published Feb. 1, 2024. 

Stephanie Taylor and Laura Osman, The Canadian Press