Bringing Light to ‘the shadows of life’

Notions for the New Year, Part III

Mental health has been an important part of my work as a parliamentarian. This is because all of my professional experiences before politics have formulated my views on the subject and made it a priority. I was first exposed to the importance of early treatment for mental health injuries back in 1998 in the aftermath of the crash of Swiss Air Flight 111. I saw how the traumatic recovery work deeply impacted some of my squadron mates and how the military was grappling with how to help people suffering from what they called ‘critical incident stress’. After I left the military for the private sector, I made it my mission to try and support efforts related to reducing mental health stigma and expanding treatment options for those in uniform. My work with the True Patriot Love Foundation was particularly focused on mental health and wellness and this prepared me for the unique opportunity I would have years later as a Member of Parliament and Minister of Veterans Affairs.

The last few decades have been transformative for how society talks about and treats mental health. From wider access to traditional cognitive and peer-based therapy treatments to the development of new creative therapies, therapeutics and innovations like service animals, advancements in mental health treatment have been astounding. Even more impressive has been the massive reduction in the stigma associated with talking about your mental health. Gone are many of the taboos of recent memory. Prominent Canadians have opened up about their struggles. Charities and corporate campaigns have stimulated a national conversation about mental health. Most workplaces are now quite open to mental health discussions and many are beginning to offer excellent benefits for their employees. For me, it has been most impressive to watch the military and other uniformed service organizations make tremendous strides in mental wellness. From resiliency training, to decompression programming after trauma exposure to other mental health supports, we have come so far.

Our society now recognizes that there will be peaks and valleys in life when it comes to mental wellness. We also know that getting people the right support can allow them to heal and find purpose in their life again. All my experiences have taught me that we must treat mental health the same way we do physical health. Make sure people are comfortable asking for help, quickly get them the treatment they need and then support them in their wellness journey. If we continue to build on the tremendous progress we have made, we will help so many people emerge from the shadows of life.

“The moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in shadows of life, the sick, the needy, and the handicapped.”

- Hubert Hoover,

The Moral Test

We must keep this progress in mind as the Canadian government faces a great moral test this year. Medical Assistance in Dying (“MAID”) is scheduled to be expanded to Canadians with a mental illness or injury as the sole underlying condition leading to the MAID request. While the government quietly postponed the coming into force of this change late last year, the delay does not change the ethical quandary we are facing. After all the great strides we have made on mental health, are we now going to suggest to people that their condition is beyond hope?

The slippery moral ground we are already on was readily apparent this fall. Multiple news reports demonstrated how vulnerable Canadians were being pressured - directly or indirectly - to consider MAID. These inducements were occurring months before the inclusion of mental health in MAID was even legal, so they serve as a very troubling forecast of the immense risks that will come with this change.

The first case to come to my attention came from one of my constituents in Durham. My office had been helping her with an application for Canadian Pension Plan Disability relating to debilitating condition that prevented her from working and caused great anxiety. After a difficult phone call explaining the denial of her claim, the constituent was horrified to be told by a government agent that she should consider MAID as one of her options. Our team thought that this might have been a terrible misunderstanding, but a few weeks later a Veterans advocate messaged me about a similar situation. In this case, a Veteran calling an assistance line had been counseled to consider MAID by the Veterans Affairs caseworker. That troubling report was the first of more than half a dozen similar cases reported by Veterans. And over the Thanksgiving period, Food bank officials also sounded the alarm after some of their clients made inquiries about MAID out of desperation and anxiety from their economic circumstances.

All of these disconcerting examples reinforce the fears that advocates in the mental health and disability fields have had for many years. I have shared their concerns and have raised them repeatedly in debate surrounding MAID. These advocates know that vulnerable people will be swept into the MAID system because of their mental illness or because they believe themselves to be a burden to their family or society. These warnings come from leading voices from the frontlines of mental health who work with the homeless and others living on the margins. They see the acute vulnerability that comes with mental illness and a lack of adequate food, shelter and treatment supports. Canada is in the midst of a cost of living and housing crisis and our healthcare system is overburdened and underfunded. It is into this incredibly challenging environment that the government is stumbling forward with their plan for a radical expansion of MAID.

The experiences from this fall should be the canary in the coalmine. In fact, there has been a flock of canaries alerting us to the dangers of this expansion. The government must finally listen to what the vast majority of mental health professionals and disability advocates have been saying about this change. We must protect the dignity and lives of some of our most vulnerable citizens living in the shadows of their life and in the dark corners of our society.

The Legal Journey of Assisted Suicide (abridged)

In my view, it is not only morally wrong for the state to end the life of someone who has a treatable health condition, but this expansion of MAID actually contradicts the legal foundation of this right and the precedent established by the Supreme Court of Canada (“SCC”). This is apparent if you examine¹ both the 2015 Carter decision that granted a limited right to assisted suicide alongside the original 1993 Rodriguez decision that denied this right at first instance.

I use the term “assisted suicide” here for a reason. MAID has a euphemistic quality to it that can gloss over the heart of this issue. The legal right that was established in Carter was for “assisted suicide” in certain situations and what the role of the state was in the process of considering each situation. Both of the Supreme Court judgments dealt with the question of whether Canadians had a right under the Canadian Charter of Rights and Freedoms (the Charter) that compelled the state to assist them in their suicide when their disability or advanced disease state did not permit them the autonomy to end their own life. This is clear from the first line of the majority opinion in Rodriguez:

“ I have read the reasons of the Chief Justice and those of McLachlin J. herein. The result of the reasons of my colleagues is that all persons who by reason of disability are unable to commit suicide have a right under the Canadian Charter of Rights and Freedoms to be free from government interference in procuring the assistance of others to take their life.”

The case of Sue Rodriguez is likely what most Canadians over forty think about when it comes to discussions about assisted suicide or MAID. It remains a compelling and tragic case rooted in compassion on both sides of the issue. Sue Rodriguez was a woman from British Columbia who advocated for assisted suicide using her own tragic situation living with Amyotrophic Lateral Sclerosis (“ALS”). Canadians had great empathy for Rodriguez who shared her journey through rapidly declining health. ALS is an untreatable nervous system disease that causes complete loss of muscle control and eventual death. Sue Rodriguez was challenging the law that prevented her from obtaining assistance for her suicide. Her debilitating disease prevented her from having the full autonomy surrounding her decision to end her life with dignity.

The SCC acknowledged the extremely difficult issues at the heart of Ms. Rodriguez’s struggle, but rejected her appeal. The court ruled that by granting a right to assisted suicide, the state would violate principles of fundamental justice that required it to protect vulnerable people and uphold the dignity of life. This finding therefore limited her section 7 right to “life, liberty and security of the person” under the Charter. The court also determined that section 1 of the Charter would justify any infringement of various Charter rights if they were found.

Decades later, the Carter judgment dealt with similar circumstances of people with debilitating diseases requesting assisted suicide. The plaintiffs were successful in having the court reconsider the issue and overturn the Rodriguez precedent. The SCC determined that their Charter rights were infringed by an overly broad prohibition against assisted suicide. This judgment overturned twenty-two years of precedent and established a new right to assisted suicide for Canadians with advanced diseases like the plaintiffs in Carter and Rodriguez. It is important to note, however, that the Carter decision did not grant a blanket right to assisted suicide, nor did it deviate from the need for legal protections to safeguard the vulnerable, as first advanced in Rodriguez.

The SCC issued a unanimous decision in Carter striking down the prohibition against assisted suicide and gave Parliament a period of time to develop a regulatory regime for this new right. The court struck down the Rodriguez precedent because it determined that an “absolute prohibition” against assisted suicide was too broad and that this overbreadth violated the section 7 Charter rights of the plaintiffs [at para. 63]. The court acknowledged that a blanket prohibition against assisted suicide would certainly prevent vulnerable people from being induced into ending their life, but ruled that this approach was far too restrictive in achieving the more limited objective of protecting vulnerable citizens.

By granting time to respond to this decision, the court reinforced the fact that a high degree of deference was owed to Parliament to establish a more appropriate set of restrictions surrounding assisted suicide to protect vulnerable people from being “induced to commit suicide at a moment of weakness” [Carter at 86].

[98] …Parliament faces a difficult task in addressing this issue; it must weigh and balance the perspective of those who might be at risk in a permissive regime against that of those who seek assistance in dying.  It follows that a high degree of deference is owed to Parliament’s decision to impose an absolute prohibition on assisted death. On the other hand, the trial judge also found — and we agree — that the absolute prohibition could not be described as a “complex regulatory response” (para. 1180).  The degree of deference owed to Parliament, while high, is accordingly reduced.

The need for some restrictions on the right to access assisted suicide in order to protect vulnerable people is the common link between the two judgments of the SCC. This principle should serve as the foundation, upon which, Parliament builds the appropriate regulatory framework to preserve the dignity of life for vulnerable Canadians. That still needs to be done properly and will likely require a SCC reference to confirm that the right balance is achieved.

To keep this essay from becoming a legal and legislative tome, I will not examine the extensive debates around Bill C-14 that followed the Carter decision. Similarly, I will not examine the details of the Quebec Superior Court decision (“Truchon”)² that struck down the “reasonably foreseeable” legislative standard from C-14, except to highlight two things.

First, on a matter so profound as state-assisted death, and one that has already been considered by the SCC on two earlier occasions, the lower court decision in Quebec should have been appealed by the government. I am sure the judge herself expected an appeal given the gravity of the subject matter.

Second, the court in Truchon rejected “slippery slope” concerns about vulnerable people being at risk with the expansion of MAID beyond the “reasonably foreseeable natural death requirement” [at para. 620]. The court concluded that there was not sufficient evidence to give credence to concerns that greater numbers of vulnerable people would be induced into MAID with its expansion. At 466:

Neither the national data in Canada or Quebec nor the foreign data indicate any abuse, slippery slope or even heightened risks for vulnerable people when imminent end of life is not an eligibility criterion for medical assistance in dying...

I think the incidents from this fall have provided all the evidence we need.

How to Pass the Moral Test - My Opinion

In my humble view, the language used by the SCC in both Rodriguez and Carter provides a clear warning to Parliament and a signpost for the way forward. The regulatory regime we create with respect to limiting access to assisted suicide (MAID) and outlining the safeguards used in its operation must make protection of the vulnerable the paramount consideration.

Parliament must protect our Veterans with invisible wounds of service from being counselled into considering MAID when they speak to a Veterans Affairs caseworker. We must protect people like my constituent with anxiety from her inability to work from being encouraged to look into MAID when she calls an assistance line. We must protect the rising numbers of people relying on foodbanks who feel the anxiety or depression that comes with food insecurity and poverty. We must protect the homeless, the lonely and the marginalized from feeling like they are a burden on a society that often seems to have forgotten them. We must recognize that we are already sliding down the slippery slope when it comes to including mental health in MAID. The well-intended ‘autonomy at all costs’ voices must realize that their approach to MAID will put people at risk.

The jurisprudence surrounding MAID was built upon the foundation of protecting the vulnerable. While the unanimous court in Carter determined that an absolute prohibition against MAID violated the Charter rights of some Canadians, the court also clearly articulated the need to prevent the deaths of people who, “in a moment of weakness”, might be induced into MAID. Both SCC judgments warned about the “decisionally vulnerable” needing to be safeguarded. To me, the language used by the court alludes to people suffering from depression, anxiety, Post Traumatic Stress Injuries or other mental health conditions. These people are inherently vulnerable because while their conditions can be treated, they also carry a substantial risk of suicide “in a moment of weakness”. As we have already seen, an expansion of MAID will create those moments.

Protecting people in that moment of weakness is the goal of all suicide prevention programming. It has also been the linchpin behind all our major strides in reducing mental health stigma in recent years. ‘Let’s Talk’. ‘It is OK to have a bad day’. ‘Sick, Not Weak’. ‘You are not alone’. All of the slogans and supportive words in our modern mental health lexicon are upon this same principle. We must help each person get through their vulnerable time. In my opinion, we must not cloud that suicide prevention message.

For someone living with mental illness or injury, their death is not imminent, expected or foreseeable. In my view, they are the vulnerable people that the Supreme Court has consistently said must be kept out of a MAID regime. This in no way diminishes the very real suffering they experience, but the fact that treatment options and other supports can bring relief distinguishes them from other Canadians who may need to access MAID. I believe that Parliament can develop a just regulatory framework for MAID that allows terminal or irremediable patients to access their Charter right without putting people who need hope and help at risk.

I hope that Parliament passes this moral test.

1. This is a condensed analysis of the legal issues in these two Supreme Court of Canada judgments. I do not examine the trial level decisions and have narrowed the Charter considerations to the most essential aspects of section 7 rights.

2. In Truchon, at 1070, the judge cited several speeches from the parliamentary debate surrounding Bill C-14 , including my own speech addressing concerns about Veterans, mental health and a slippery slope. A portion of that speech is included in the video at the end of the essay.