Charter challenge launched against Ottawa for excluding mental illness from MAID

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OTTAWA — A Charter challenge has been launched against the federal government over its decision not to allow those suffering solely from mental illness the ability to access an assisted-death.

On Monday, a statement of claim was issued at the Ontario Superior Court of Justice by Dying with Dignity Canada, a national charity that advocates for people’s right to access the procedure, along with two individuals diagnosed with mental disorders who say it has filled their life with suffering.

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“I just want to be free,” said 47-year-old Claire Elyse Brosseau, an actress and comedian who has lived with bipolar disorder among other mental illnesses and substance abuse disorder since she was a teenager.

She said she hopes those opposed to patients like her having the option of accessing medical assistance in dying (MAID) never need it themselves because, “they cannot possibly know what it feels like to be on your knees begging for your life.”

Brosseau said she only leaves her home when absolutely necessary and has cut herself off from the world, outside of doctors and lawyers.

“They think it’s begging for death, which it is, but it’s begging for my life, to please, please, please, just let me be free and take it away. Make it stop.”

The challenge comes almost six months after Prime Minister Justin Trudeau’s government legislated another delay in expanding the eligibility to include those whose only reason for seeking assisted-death is from an intolerable mental illness.

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The expansion has been pushed back until 2027, which falls after the next scheduled federal election which must happen no later than October 2025.

The challenge filed on Monday asks the court to declare that the exclusion infringes on sections 7 and 15 of the Charter of Rights and Freedoms, which states every person is guaranteed to “the right to life, liberty and security” and equal protection under the law without discrimination, respectively.

The federal government “admits that mental illness can cause enduring and intolerable suffering,” according to the document, which outlines how the “blanket exclusion” for those with mental disorders perpetuates stigma against them.

“There is no constitutional justification for the prolongation of the enduring and intolerable suffering of those Canadians who are eligible for MAID but for the mental illness exclusion,” it reads.

Medical assistance in death has been legal in Canada since 2016 after the Supreme Court of Canada struck down Criminal Code provisions against it in a historic 2015 ruling.

Only adults with incurable physical illness whose death was “reasonable foreseeability” were able to access it until March 2021, when Parliament passed an updated version of the law following a decision by the Superior Court of Quebec, which ruled such a provision to be unconstitutional.

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The Liberals also accepted a Senate amendment made to the bill at the time that sought to end the exclusion for those whose suffering came solely from a mental disorder. Senators who argued for it said the exclusion violated their Charter rights.

The change was initially set to take effect in March 2023, two years after the updated law was passed.

However, ministers at the time legislated an additional one-year delay to provide medical professionals more time to prepare, as concerns mounted about the need for appropriate safeguards to protect a vulnerable population.

By February 2024, the federal health and justice ministers announced the government was seeking an additional three-year delay, given concerns it heard from provinces and territories about not being ready in terms of the number of professionals trained and having a received a recommendation from a special joint committee that called for a delay.

That group of members of Parliament and senators heard from psychiatrists who raised concerns about the difficulty of determining whether someone suffering from mental illness could improve.

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Critics also questioned what role factors like poverty and a lack of medical access would play in leading individuals suffering from mental illness to seek assisted-death.

Proponents of expanding access, including assisted-dying assessors and other practitioners said the system was ready and voiced concern that those opposed to the change would never be satisfied that the country was ready.

Opposition Conservative Leader Pierre Poilievre has promised to scrap plans to expand eligibility to those with mental illness, should his party form the next government.

John Scully, an 83-year-old former journalist and war correspondent who is an applicant in the case, said after years of treatments, including six stays at the Centre for Addiction and Mental Health, he continues to suffer from post-traumatic stress disorder, depression and anxiety.

He said he lives with violent nightmares that leave him sleep deprived and spends his days dealing with the after-effects of medication.

“It gets worse by the day, life does,” he said in a recent interview .”I want to stop the suffering.”

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“It’s terminal. I have no choice. I have no cure.”

Both he and Brosseau, who is also an applicant in the case, say they both want a death that is an alternative to suicide, not only to spare themselves from a potentially violent death, but from causing trauma to their loves ones and even strangers.

But in absence of giving her the option of an assisted-death, Brosseau said she doesn’t feel there are other options.

“If the government has to justify violence, then I would like them to justify that.”

While Brosseau said she has found relief over periods of her life and has hope for future treatments, her mental illnesses have not disappeared.

“I cannot be a part of this anymore,” she said. “We don’t ask cancer patients to live until they find a cure because it’s inflicting tremendous pain.”

The challenge asks the court to make the mental illness exclusion no longer in effect and to provide access to Brosseau and Scully by way of an exemption. It also seeks for the court to pave a way for others to apply to a court for similar access, should they meet the criteria.

Court documents say assessors have deemed both Brosseau and Scully eligible under existing requirements.

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“I still am reluctant to concede that suicide is the one way out,” Scully said.

“But MAID for the mentally ill is the option of choice.”

National Post
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