A War on Two Fronts
Unless Parliament does something to stop it, Canadian doctors will be permitted to kill mentally ill persons who ask for it six months from now.
Canadian “MAID providers” already kill persons suffering from mental illness, but such persons only technically qualify for state-sponsored euthanasia if they also have a physical illness or disability.
Thankfully, some Parliamentarians are keen to stop euthanasia for mental illness from becoming legal next year. Earlier this year, a Parliamentary committee urged Parliament to stop it from becoming legal. And later this month, Bill C-218, a private member’s bill that would do just that, will be debated at second reading in the House of Commons.
But there is a parallel war going on in an Ontario court room.
Dying With Dignity’s Charter Challenge
Dying with Dignity Canada has teamed up with Claire Brosseau, who struggles with mental illness, and with a doctor willing to euthanize her. Together, they are challenging a rule that excludes mental illness as a qualifying condition for MAID.
That constitutional challenge will take months to resolve. It will involve medical expert witnesses and a long court hearing. But Ms. Brosseau did not want to wait that long. So, she sought permission from the court to be euthanized while the underlying constitutional case continues.
Last week, the court refused to grant an exemption to permit doctors to kill Claire Brosseau. This does not resolve the underlying Charter challenge, but it does avoid setting a disastrous precedent.
The Tragic Case of Claire Brosseau
Ms. Brosseau, now 49 years old, has had serious mental health struggles since she was a teenager. At age 14, she developed an eating disorder requiring psychiatric treatment. She also began to consume alcohol, marijuana, and psychedelic drugs. Tragically, she was sexually assaulted at age 15 and became suicidal.
Things improved, however, and Ms. Brosseau pursued an acting career as a young woman and did well. But her substance abuse continued. She suffered from bipolar disorder and became severely depressed and, again, suicidal.
Ms. Brosseau had intermittent periods of heavy substance abuse and sobriety in her 20s. She spent time in in-patient psychiatric care a few times in her 20s and 30s. She left Los Angeles at age 36, being too sick to work, and moved back to Toronto.
After an accident involving severe impairment by alcohol at age 39, Ms. Brosseau managed to quit drinking, with help from Alcoholics Anonymous. Still, her mental health struggles continue to the present day.
In her early 40s, Ms. Brosseau went into a major depressive state. Cognitive Behavioural Therapy helped, but, as she told the court, her “desire to die never went away.”
Things grew worse in recent years, following her stepfather’s death. Ms. Brosseau was admitted to the Centre for Addiction and Mental Health in Toronto and was placed in restraints, which was a traumatic experience for her.
Ms. Brosseau describes her current condition as follows. She suffers severe mood swings and depression, and episodes of mania. She cannot work or volunteer. She relies on social assistance and family support. She cannot maintain relationships outside of her immediate family. Her cognitive abilities and memory are damaged.
She wishes to die, but not alone or by violent means.
In her own words, she wants “a safe exit from my life” because “bipolar disorder has removed my ability to live with dignity.”
The Court’s Reasoning
Justice Mathen of the Ontario Superior Court granted that Dying With Dignity’s constitutional challenge raises serious issues and demonstrates prima facie (“on the face of it”) breaches of the Charter of Rights and Freedoms.
Also, Justice Mathen found that refusing to grant Ms. Brosseau an exemption would cause her “irreparable harm” in the form of ongoing severe mental suffering. Legally, whether the party seeking interim relief will suffer irreparable harm is part of the test.
The Court also found that the government is to blame for the irreparable harm that Ms. Brosseau has suffered and will likely continue to suffer, since, were it not for the law, Ms. Brosseau could have already ended her suffering via “MAID.”
Thus, even though the government is not to blame for Ms. Brosseau’s mental health condition, nor for her preference to die via euthanasia (illegal) rather than suicide (legal), the court considers the government responsible for Ms. Brosseau’s ongoing suffering, at least for constitutional law purposes. This is troubling, but the Court’s analysis does not end there.
The government also contested Ms. Brosseau’s evidence that her illness is irremediable, noting that her MAID assessors had incomplete information about her medical history, and that there are various evidence-based treatment plans that could potentially alleviate Ms. Brosseau’s current symptoms, which have not been fully explored or tried. Still, Justice Mathen was satisfied that, for the purpose of the exemption application, Ms. Brosseau was more likely than not to continue suffering.
Justice Mathen ultimately rejected the exemption request based on the “balance of convenience” part of the legal test for granting or refusing an interim remedy (“interim” because it would not resolve the underlying Charter challenge to the law).
Justice Mathen found that the “inconvenience” resulting to the government of Canada in granting the exemption would be more significant than that caused to Ms. Brosseau in denying it. That is primarily because Ms. Brosseau sought “an exemption that would make it difficult for the court to refuse the same remedy to other litigants.”
Granting Ms. Brosseau an exemption would set a disastrous precedent. Even while Dying With Dignity’s case continues, which could take years, people suffering from mental illness could apply for exemptions, which the government of Canada would need to contest, and which would undermine Parliament’s decision to not legalize euthanasia for mental illness.
Justice Mathen also noted that the government has a pressing interest in “protecting vulnerable persons from premature death and preventing MAID in cases where the eligibility for it [i.e. irremediability, especially] cannot be reliably determined.”
Ms. Brosseau tried to use the pending legalization of MAID for mental illness (scheduled for March 2027) to her legal advantage, arguing that Parliament has effectively already recognized that she has a “right to MAID”, even if it seems to be reluctant to respect that right in practice.
Thankfully, Justice Mathen didn’t buy this. “I must reject the underlying theme of Ms. Brosseau’s position, which is that the basic constitutional issue has been settled,” she wrote. “I am unable to conclude that the Mental Illness Exclusion is as frail as the moving party and supporting interveners suggest.”
Parliament Must Act
Thankfully, Ms. Brosseau and Dying With Dignity failed in this instance.
But this case highlights the need for Parliament to reject euthanasia. Ms. Brosseau is plainly suicidal, according to her own testimony. Our society should not endorse suicide (or homicide, which euthanasia technically is) as a solution for suffering.
But again, unless Parliament does something to stop it, Canadian doctors will soon be permitted to kill mentally ill persons who request “MAID”.
As noted above, the constitutional challenge to the mental illness exclusion continues. The Court has ordered the government of Canada to speed things up in terms of filing its responding expert evidence. ARPA will follow this case closely and may soon apply to intervene.
