Arif Virani, the Minister of Justice, is reported to have said, “we’re weighing our options,” and that allowing the sunset clause to take effect or seeking another delay – are both “on the table.” He has said he will consider the forthcoming report of the Special Joint Committee on MAiD, a committee mandated “to verify the degree of preparedness attained for a safe and adequate application of MAID (in MD-SUMC situations).”

That’s appropriate, but Virani should also consider his government’s track record in the courts, as well as its prior statements on this issue.

In 2011, the government tried to argue that the blanket Criminal Code prohibition on MAiD didn’t violate the Charter. It lost. The Supreme Court of Canada ruled unanimously in Carter v. Canada that Canada’s prohibition on MAiD violated the Charter.

When the SCC struck down the prohibition, it gave the government 12 months to introduce new legislation should they choose to do so (extended to sixteen months). After that time, the prohibition would be gone. But during that time, the SCC gave individuals the ability to go to court to seek an authorization to access MAiD under the parameters of the Carter decision. One of the people to do this sought MAiD for a psychiatric condition. The government opposed her motion and tried to argue that the Carter decision excluded individuals with psychiatric conditions from eligibility for MAiD. Again, it lost. Both the trial judge and a unanimous panel of 3 judges from the Alberta Court of Appeal, held in Canada (Attorney General) v. E.F. that Carter contained no such exclusion and EF accessed MAiD.

Then, in 2019, the government tried to argue that Bill C-14 – its first legislative response to Carter – didn’t violate the Charter. But Bill C-14 went narrower than the parameters in Carter by restricting MAiD access to people whose natural death had become “reasonably foreseeable.” This restriction was challenged by two people with chronic conditions and disabilities, but whose natural deaths were not reasonably foreseeable. Again, the government lost. A Quebec Superior Court judge held in Truchon c. Procureur général du Canada that Bill C-14’s restriction violated the Charter. As part of the Truchon case, the government tried to argue that “natural death has become reasonably foreseeable” is a reasonable eligibility criterion as it prevents persons with mental disorders as their sole underlying medical condition from accessing MAiD, purportedly a necessary protection. To make that argument, it needed to persuade the court that the Carter decision had excluded persons with a mental disorder as their sole underlying condition from MAiD. The judge rejected both arguments.

The courts have spoken and the government knows it. More than that, the government has acknowledged the strength of the decisions in EF and Truchon and chose not to appeal them. The current Attorney General has described the Truchon decision as “well documented, well expressed and well supported by the evidence.” The former Attorney General said of Truchon, “the simple fact of the matter is this: Had we appealed the decision through the court of appeal, or possibly the Supreme Court of Canada, so many more Canadians would have had to suffer for so much longer…. That would be on a case in which we strongly believed legally we would lose on its constitutionality. The reasoning of the Québec Superior Court was compelling and it will ultimately be upheld.” The Government knows that evidence relating to MAiD for mental disorders was presented in Carter, EF, and Truchon. It knows that the issue of MAiD for mental disorders was squarely before the courts. It knows what the courts’ decisions said.

The Government has accepted that it cannot constitutionally implement a ban on MAiD MD-SUMC. As former Minister of Justice Lametti stated when speaking to the government’s first request for a delay, “we do have to respect decisions of the courts, they have said that MAiD is a right that Canadians have.” And when asked whether a ban rather than a delay might happen, he replied “I think that would run us afoul of the courts.” To deny access on the basis of mental disorder is a breach of both sections 7 and 15 of the Charter.

But can the Government further delay allowing access? Would a further delay rather than an outright ban be “demonstrably justified in a free and democratic society” (as required by the Charter)?

The answer is no. It is possible that the first delay could have been justified by an argument based on a lack of preparedness. But by now the federal government has done everything in its jurisdiction to ensure preparedness for MAiD MD-SUMC. It expanded the collection of data on all MAiD requests (including data on gender identity, race, Indigenous identity, and disability). It had a federal expert panel conduct an independent review “respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.” It had an independent expert Task Group develop a model practice standard and advice to the profession for adoption/adaptation by the provincial/territorial regulatory bodies. It got a national accredited curriculum for MAiD Assessors and Providers developed and implemented. Furthermore, it has strong and reliable evidence before it that, across the country, the bodies that regulate physicians and nurses are ready, MAiD programs are ready, psychiatrists willing to be involved in MAID are ready, and MAiD assessors and providers willing to be involved in MAiD MD-SUMC are ready.

If the government delays yet again, it will face another Charter challenge to its MAiD law. And, yet again, it will lose. Surely it is time for the government to stop making decisions that prolong pain and suffering. Especially when the only reason left for doing so seems to be political expediency, which flies in the face of the government’s self-proclaimed status as the “party of the Charter.”