Introduction
Over the last decade, the federal government’s medical assistance in dying (MAID) policy has changed many times, often precipitated by judicial decisions about rights contained in the Canadian Charter of Rights and Freedoms (henceforth, “the Charter”). In Carter v Canada (2015), the Supreme Court of Canada struck down Canada’s blanket prohibition on MAID for violating the Charter. Parliament’s legislative response, which limited access to those for whom death was “reasonably foreseeable,” was soon struck down by the Quebec Superior Court for violating the Charter (Truchon c. Procureur général du Canada 2019). Rather than appealing, the federal government responded with Bill C-7 (2021), which removed the requirement that death be “reasonably foreseeable”, but also permitted MAID where mental illnessFootnote 1 is the sole underlying medical condition, subject to a two-year “sunset clause.” However, the government twice extended the sunset clause via Bill C-39 (2023) and Bill C-62 (2024), with MAID for mental illness currently not set to be permitted until March 2027.
This article analyzes parliamentary debates to explore the federal government’s motivations for initially expanding MAID to include mental illness and subsequently deferring this inclusion. We pose two research questions: first, which factors influenced Parliament’s initial decision to expand MAID eligibility to include mental illness as the sole underlying condition? Second, which factors contributed to the subsequent deferrals of the inclusion of mental illness? We argue that, in addition to the parliamentary dynamics associated with minority government, the initial expansion of MAID to include mental illness was driven in part by two factors related to the judiciary: the looming deadline to create a new policy after the 2019 Truchon judicial decision and the government’s desire to avoid future Charter litigation regarding the exclusion of mental illness. These factors, both of which speak to the broader judicialization of politics, resulted in the federal government shifting its narrative regarding the inclusion of mental illness over the period of a few months, eventually framing it as a cautious step forward, legally defensible and politically acceptable. By contrast, we find that the government’s subsequent deferrals of this policy were driven by concerns about the perceived lack of system readiness from key stakeholders, particularly provincial governments.
This article makes several contributions. First and foremost, the analysis of legislative debates contributes to our understanding of why the federal government ultimately included mental illness in its MAID eligibility criteria, after having initially deliberately excluded mental illness in its original bill. We show how two factors related to the judiciary—the expiring deadline to respond to Truchon and the threat of future Charter litigation over mental illness—contributed to the government’s change of heart. Second, and relatedly, it shows how the threat of litigation can shape legislative outcomes, insofar as the government’s acceptance of a senator’s amendment to Bill C-7 reflected “future-oriented compliance” designed to avoid Charter challenges rather than to respond directly to judicial instruction. Third, it contributes to the literature on interinstitutional dialogue by showing that legislative responses to Charter rulings can shift as implementation challenges—particularly those involving provincial health-care readiness—emerge over time. Fourth, it extends our understanding of the “judicialization of politics” by highlighting how suspended declarations of invalidity operate as ongoing mechanisms of judicial influence, constraining parliamentary choice well beyond an initial court ruling. Finally, it offers a cautionary insight into how using sunset clauses to manage contentious Charter-sensitive policy reforms can produce cycles of reconsideration and uncertainty.
This article proceeds in the following manner. First, we describe the litigation and policy history of MAID in Canada, including major judicial decisions and the passage of four federal laws between 2016 and 2023. Second, we review the scholarly literature on interinstitutional dialogue, judicialization and MAID policy in Canada. Third, we describe the data, methods and results of our qualitative analysis of parliamentary debates surrounding Bills C-7, C-39 and C-62. Finally, we assess the implications of these findings, particularly with respect to interinstitutional dialogue, the judicialization of Canadian politics and parliamentary strategies for compliance with judicial decisions about Charter rights.
Litigation and policy changes to MAID, 1993–2024
Until 2016, Canada’s Criminal Code banned all forms of assisted dying via several provisions, including section 241 (“Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years”) and section 14 (“No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given,” quoted in Carter v Canada 2015, para 19). Collectively, these provisions created a blanket prohibition against all forms of MAID.
With successive federal governments unwilling to revisit the blanket prohibition, advocates for policy change turned to the courts. The first major Charter decision occurred when Sue Rodriguez, who suffered from amyotrophic lateral sclerosis, challenged that the criminal prohibitions violated her Charter rights to life, liberty, security of the person (s 7), her right to be free from cruel or unusual treatment or punishment (s 12) and her right to equality (s 15). In 1993, a closely divided Supreme Court upheld the prohibition on MAID through a 5:4 majority finding that any infringements on Rodriguez’s Charter rights were reasonable limits under s 1 of the Charter (Rodriguez v British Columbia, 1993). In its s 7 analysis, the majority judgment emphasized Parliament’s desire to promote the principle of the “sanctity of life,” referring to a consensus among Western democracies and within the Canadian legal system that “human life must be respected and we must be careful not to undermine the institutions that protect it” (605, 608). Four judges dissented for different reasons: Justices McLachlin and L’Heureux-Dubé found an unjustified infringement of the s 7 right to security of the person, Chief Justice Lamer found an infringement of s 15 equality rights and Justice Cory found unjustified infringements of both rights.
Although a majority upheld the prohibition in Rodriguez, this was not the end of the influence of the Charter on MAID policy. Two decades later, Kay Carter and Gloria Taylor, both suffering from degenerative diseases, once again brought the issue of Canada’s MAID prohibition to the courts. Although both Carter and Taylor passed away before their case reached the Supreme Court (Carter by accessing MAID at the Swiss Dignitas clinic), their case was ultimately successful: in Carter v Canada (2015), the Supreme Court unanimously held that the blanket prohibition violated the s 7 Charter rights of competent adults suffering from a “grievous and irremediable medical condition” that causes “enduring and intolerable suffering.” The Supreme Court justified the reversal of the Rodriguez precedent because there had been both changes in the development of law (through jurisprudential changes to the determination of a s 7 violation, particularly with respect to development of overbreadth and disproportionality as “principles of fundamental justice”) and changes to the “circumstances or evidence” present in the case (namely, the availability of new social science evidence of comparative MAID regimes). This infringement was not justified as a reasonable limit under s 1 of the Charter, as the court found that the absolute prohibition was not “minimally impairing” (Carter v Canada 2015, paras 8, 44, 102–21). The court declared the offending Criminal Code provisions void, but suspended its declaration of invalidity—initially for 12 months, then eventually extended to 16 months—to enable Parliament to respond.
In June 2016, Parliament passed Bill C-14, introduced by Justice Minister Jody Wilson-Raybould, which established Canada’s new framework for MAID. In terms of its eligibility criteria, the Liberal government partially adopted the Supreme Court’s language by limiting access to those suffering from a “grievous and irremediable medical condition.” However, the government added several additional criteria to what constituted a grievous and irremediable medical condition, including that the person must have a “serious and incurable illness, disease or disability,” that they were in “an advanced state of irreversible decline in capability” and that their “natural death has become reasonably foreseeable.” In particular, this requirement for reasonably foreseeable natural death (RFND) was criticized by scholars, stakeholders and advocacy groups, who claimed it was overly restrictive of Charter rights (see Nicolaides and Hennigar Reference Nicolaides, Hennigar and Macfarlane2018; Downie and Scallion Reference Downie, Scallion, White and Lindy2021).
In 2019, Nicole Gladu and Jean Truchon successfully challenged these provisions, as well as similar provisions in Quebec’s Act Respecting End-of-Life Care, in the Quebec Superior Court. In the decision, Justice Baudouin found that the RFND requirement unjustifiably violated the s 7 right to life, liberty and security of the person (for reasons of overbreadth and gross disproportionality) and the s 15 right to equality (for perpetuating “prejudice and disadvantage for the applicants and the physically disabled”; see Truchon c. Procureur général du Canada 2019, paras 588, 674). Although the decision did not invalidate the MAID provisions on the basis of whether mental illness was the sole underlying medical condition, Justice Baudouin did address the issue of “Vulnerable Groups Based on Their Psychiatric Condition Alone” in detail. Noting that “neither Carter nor the federal legislation excludes people with a psychiatric condition from requesting and being granted medical assistance in dying,” Justice Truchon was critical of the federal government’s expert testimony that had raised concerns about MAID for those with psychiatric conditions (Truchon, 2019, paras 386–422). Although these observations were not dispositive in the decision, they nonetheless shaped the broader legal context in which Parliament responded to the decision.
Rather than appealing the decision, on 17 March 2021, the new federal minister of justice, David Lametti, introduced Bill C-7, which repealed the RFND requirement and established a two-track eligibility and safeguard system based on the foreseeability of death (Bill C-7). For individuals whose natural death is foreseeable (Track 1), the law removed the mandatory ten-day waiting period between signing a request and administering MAID to avoid prolonging unnecessary suffering. For those whose death is not foreseeable (Track 2), the law requires assessment by a second practitioner with expertise in the condition causing the person’s suffering. Bill C-7 also created a ninety-day assessment period between the first eligibility assessment and the provision of MAID, which could be shortened if both medical practitioners assessed an imminent loss of capacity. For both tracks, Bill C-7 removed the need for a second independent witness (see Nicol and Tiedemann Reference Nicol and Tiedemann2021, 7–9).
With respect to mental illness, the first draft of Bill C-7 explicitly excluded mental illness as a sole underlying condition by amending the Criminal Code to explicitly state that “a mental illness is not considered to be an illness, disease or disability.” Many witnesses criticized this approach, noting that Bill C-14 had not explicitly excluded mental illness, that some provincial courts had interpreted the law as permitting MAID for those with mental illnesses and that some patients had already received MAID on this basis (Truchon, 2019, paras 421–422; see Nicolaides Reference Nicolaides, Macfarlane and Puddister2022). However, the government ultimately changed course: the final version of Bill C-7—building on an amendment proposed by Senator Stan Kutcher—included a “sunset clause” that would repeal the mental-illness exclusion after two years, which would have had the effect of permitting MAID for mental illness as a sole underlying condition. Yet, at the time of writing, mental illness remains excluded as a sole underlying condition, as Parliament subsequently deferred the repeal on two occasions: Bill C-39, passed in 2023, deferred the inclusion of mental illness until March 2024; and Bill C-62, passed in February 2024, deferred the repeal for a further three years. The sunset clause is currently set to expire on 17 March 2027, at which point, absent amendment to the Criminal Code, MAID will be available to those whose sole underlying medical condition is mental illness. In 2025, a Conservative MP introduced a private member’s Bill C-218, which would amend the Criminal Code to make the mental-illness exclusion permanent. As of writing (January 2026), Bill C-218 has passed first reading and is being studied at committee in the House of Commons.
Interinstitutional dialogue and MAID policy in Canada
The issue of expanding MAID to those with a sole underlying medical condition of mental illness has been subject to considerable debate in the bioethical scholarly literature. Proponents of expansion tend to argue that exclusion violates patient autonomy and understates the intolerability of mental suffering, and that limiting access based on the type of illness is paternalistic and unjust (see Dembo, Schuklenk, and Reggler Reference Dembo, Schuklenk and Reggler2018; Downie Reference Downie2022; Downie and Schuklenk Reference Downie and Schuklenk2021). By contrast, critics of expansion argue that it risks normalizing MAID and devaluing the life of vulnerable populations (see Coelho Reference Coelho2025; Craine Reference Craine2023). While exploring the contours of this ethical debate is beyond the scope of this article, it is worth noting that all sides of this debate were well represented during the parliamentary debates over Bills C-7, C-39 and C-62.
As MAID policy has developed in Canada since 2015, much of the legal and political science literature has focused on how the policy field has been driven by interactions between Parliament and the judiciary. As Downie and Scallion (Reference Downie, Scallion, White and Lindy2021, 17–18) note, those advocating for change to Canada’s MAID laws have had two paths to reform: the “legislative path” of persuading the federal government to remove Criminal Code restrictions and provincial governments to pass MAID legislation under their jurisdiction over health; and the “judicial path” of persuading courts to strike down criminal prohibitions for violating the Charter. Downie and Scallion conclude that, while the legislative path “may lead to better legislation” in Quebec (which has had its own MAID policy framework for over a decade), the judicial path may be necessary “in the face of inertia or active resistance” from legislatures—particularly the federal Parliament (31, 36–37).
Other scholars have explored the extent to which Canada’s MAID policy stands out as an instance of “dialogue” between the federal Parliament and the Supreme Court of Canada. In their famous 1997 article, Peter Hogg and Allison Bushell postulated that, when the Supreme Court strikes down a law for violating the Charter, “the decisions of the Court almost always leave room for a legislative response, and they usually get a legislative response” (Reference Hogg and Bushell1997, 105). The dialogue metaphor—or “dialogue theory” as it came to be known—was cited by the Supreme Court in its jurisprudence (Vriend v Alberta 1998; Sauvé v Canada 2002) and has been subject to considerable scholarly debate. Critics of the metaphor argue that provincial legislatures and the federal Parliament rarely engage in robust dialogue (Macfarlane Reference Macfarlane2013; Manfredi and Kelly Reference Manfredi and Kelly1999; Sigalet Reference Sigalet2025). In this vein, some critics of the dialogue metaphor (Baker Reference Baker2010) suggest that legislatures ought to engage in “coordinate” interpretation of the Charter by offering their own interpretations of rights—something proponents of dialogue theory reject (Hogg, Thornton, and Wright Reference Hogg, Bushell Thornton and Wright2007, 31).
Irrespective of the amount of dialogue that occurs quantitatively, most scholars agree that the federal government’s Bill C-14 (2016), passed in response to Carter, was qualitatively an example of a robust parliamentary response that engaged in disagreement with the Supreme Court regarding the parameters of Charter rights (Kelly Reference Kelly2024; Nicolaides and Hennigar Reference Nicolaides, Hennigar and Macfarlane2018; Macfarlane, Hiebert, and Drake Reference Macfarlane, Janet and Anna2023, 149). In this vein, Nicolaides and Hennigar (Reference Nicolaides, Hennigar and Macfarlane2018) drew from legislative debates to show that Bill C-14 constituted a “rejection of judicial supremacy” over constitutional interpretation, with the federal Parliament adopting a “coordinate” position that disagreed with the Supreme Court’s interpretation of Charter rights (326). A particular example of this is then-Justice Minister Jody Wilson-Raybould’s assertion that “just as Parliament must respect the court’s ruling, so too must the court respect Parliament’s determination of how to craft a statutory scheme in response to the court’s judgement” (Nicolaides and Hennigar Reference Nicolaides, Hennigar and Macfarlane2018, 323). Nicolaides (Reference Nicolaides, Macfarlane and Puddister2022) has subsequently argued that Bill C-14 amounted to the most significant challenge to the Supreme Court’s interpretive monopoly over the definition of rights in Canadian history, while Kelly refers to Bill C-14 as an example of legislative “non-compliance” that signaled a “lack of commitment to institutional dialogue” (Reference Kelly2024, 291, 264). In explaining why this noncompliance occurred, Snow and Puddister (Reference Snow, Puddister and Macfarlane2018, 53) argue that C-14 stemmed in part from a closing “policy window” of the Supreme Court’s suspended declaration of invalidity, along with a swing in “national mood” against a more permissive MAID framework.
Collectively, these studies share an understanding that, somewhat unexpectedly, the Trudeau government engaged in a robust response to Carter with Bill C-14, either challenging or outright disagreeing with the Supreme Court’s interpretation of what s 7 of the Charter required. This is in stark contrast to the far more deferential response to the Quebec Superior Court in Truchon by the same Trudeau government. Kelly (Reference Kelly2024, 291) highlights three factors that explained the Trudeau government’s deferential approach in C-7. First, a more permissive MAID regime had become increasingly popular with the public by the time of the Truchon judgment in 2019 (see Nicolaides Reference Nicolaides, Macfarlane and Puddister2022). Second, the Liberals had been reduced to a minority government between Bills C-14 and C-7, which meant that a response to Truchon required some opposition support. Given that New Democratic Party (NDP) and Bloc Québécois MPs (and their voters) were most likely to support expanding MAID, this increased the governing Liberals’ intra-parliamentary incentives for a more permissive approach (Kelly Reference Kelly2024, 283–84). Third, David Lametti, a former law professor, had replaced Jody Wilson-Raybould as justice minister. As a backbencher, Lametti had voted against Bill C-14 in 2016 because he felt the law was “at serious risk of being found to be unconstitutional” and he could not “give it my vote in good conscience” (quoted in Bryden Reference Bryden2019). During legislative debates over Bill C-7, Lametti exhibited far more deference to the courts than did Minister Wilson-Raybould during debates over Bill C-14 (see Macfarlane, Hiebert, and Drake Reference Macfarlane, Janet and Anna2023, 139–40).
These factors explain why the Trudeau government would have adopted a more deferential approach to a judicial ruling with Bill C-7 (2021) than with Bill C-14 (2016) and why that deference would lead the government to remove the RFND requirement. However, what has gone largely unexplored is why, in the absence of any specific direction regarding mental illness in Truchon, the government nevertheless decided to permit MAID for mental illness in its legislative response—and what led the government to subsequently defer that expansion in 2023 and again in 2024. To answer those questions, we turn to parliamentary debates below.
Data, methods and results
To better understand the motivations behind the federal government’s decisions related to MAID and mental illness in response to Truchon, we engaged in a textual analysis of parliamentary debates and committee hearings on Bill C-7 (2021), Bill C-39 (2023) and Bill C-62 (2024). As with similar studies of legislative debates such as Johnson, Burns and Porth’s (Reference Johnson, Burns and Porth2017) study of Parliament’s sex-work legislation and Snow’s (Reference Snow2017) study of Ontario’s parentage policy, we drew primarily from hearings at second reading and parliamentary committee. Using LEGISinfo, we examined all major speeches at second and third readings in the House of Commons, as well as the consideration at committee for each bill. In addition, for Bill C-7, we examined the second and third readings in the Senate, as well as the “Consideration of messages between the House of Commons and the Senate” related to the Senate’s proposed amendments. The time period covered by the study was 9 October 2020 to 11 March 2021 for Bill C-7; 13–15 February 2023 for Bill C-39; and 7–14 February 2024 for Bill C-62. In total, we analyzed 762 pages of parliamentary debates and committee hearings. We employed a thematic qualitative text analysis (Braun and Clarke Reference Braun and Clarke2006), which focused on inductively identifying recurring themes in parliamentary discourse, as well as framing strategies used by policymakers to justify expanding or restricting the eligibility for MAID, with an emphasis on themes related to mental illness.
In what follows, we organize our discussion chronologically, from Bill C-7 to Bill C-39 to Bill C-62. The main area of emphasis is on Bill C-7, as that bill contained the longest period of debate, with far more committee meetings and witnesses. As we will show, it is necessary to divide the debates over Bill C-7 into three periods: before, during and after the Senate amendment that sought to extend access for mental illness.
Bill C-7 before the Senate amendment: Defending the mental illness exclusion
When presented at first reading on 5 October 2020, Bill C-7 did not permit MAID for mental illness; in fact, it expressly excluded it. The bill would have added s 241(2)(2.1) to the Criminal Code, which stipulated that, when determining what qualified as a grievous and irremediable medical condition, “a mental illness is not considered to be an illness, disease or disability.” As a result, the House of Commons debates and consideration at committee from 5 October to 10 December 2020 did not focus primarily on mental illness; instead, most of the focus was on the removal of the RFND requirement and the removal of the mandatory ten-day waiting period. In general, Conservative MPs tended to criticize the government’s initial bill as pushing the criteria for access to MAID too far, even without the mental health addition, while NDP and Bloc Québécois were broadly supportive of extending MAID, eventually voting with the government to support Bill C-7 (Canadian Press 2021a). Arif Virani, then-parliamentary secretary to the justice minister, summed this up when he noted that some parties “feel we are either taking this too far, as expressed by the official opposition, or not taking it far enough, for example, by entertaining advance directives.” Virani described Bill C-7 as “a middle approach, a prudent approach and one that is constitutionally compliant” (Canada 2020c, 824).
With respect to mental illness, government MPs at committee tended to echo the language from a government press release from October 2020, which noted that the bill “proposes to […] exclude eligibility for individuals suffering solely from mental illness.” The press release claimed that mental illness was one of many “other important questions related to MAID in Canada” that “could be considered during a broader parliamentary review of MAID legislation” in the future, but was not the focus of this bill (Canada 2020b). In the House of Commons, the government expressed a reluctance to expand MAID to mental illness. In his sponsor’s speech, Justice Minister Lametti pointed out that consultations from stakeholders cautioned against such an expansion:
Our consultations and the report of the Council of Canadian Academies that studied this issue indicated that the trajectory of mental illness is more difficult to predict than that of most physical illnesses, that spontaneous improvement is possible, and that a desire to die and an impaired perception of one’s circumstances are symptoms, themselves, of some mental illnesses. This means that it would be very difficult to determine when, if ever, it is appropriate to grant someone’s request that their life be ended solely on the basis of mental illness. (Canada 2020c, 788)
These complexities—and the citation of expert organizations—were reiterated by parliamentary secretary Arif Virani:
The bill proposes to exclude persons whose sole underlying condition is mental illness […] It recognizes the increased complexities and risks associated with such cases, which were highlighted by many practitioners, stakeholders and experts at the main round tables. What is also very important is that the Canadian Mental Health Association supports the position we are taking with respect to excluding mental illness as a sole underlying condition. […] Issues of consent and capacity and properly being able to diagnose this and having a prognosis are critical. (Canada 2020c, 819)
There were two common themes in speeches from Lametti and Virani when justifying the initial exclusion of mental illness: deference to experts and the need for more time to study mental illness. Lametti noted that “[e]xperts disagree on whether medical assistance in dying can ever be safely made available” in cases of mental illness: “while those with mental illness can suffer unbearably, unpredictable illness trajectories mean there is always the possibility of improvement and recovery and it can be especially difficult to tell whether a desire to die is a symptom of the illness, or a rational response to it.” With respect to time, Lametti claimed that the mental-illness “exclusion gives Parliament more time to reflect on this complex question, which is fraught with serious risks, to determine whether it is possible to craft a safe MAID regime for this category of persons” (Canada 2020d, 2). Lametti invoked both themes—expert opinions and the need for time—when he said that “there isn’t consensus, and it is a very deeply felt fear in the experts to whom we have spoken in the medical community and in the [Council of Canadian Academies] report as well. We still need to know more” (Canada 2020d, 8).
The testimony from witnesses varied considerably on the question of mental illness. Some witnesses, such as those representing the Canadian Association of Physicians and the Centre for Addiction and Mental Health (CAMH), expressed a lack of readiness: Dr Tarek Raji noted that “CAMH strongly recommends that evidence-based criteria be developed prior to any decision to lift the temporary prohibition on MAID for people whose only medical condition is mental illness” (Canada 2020e, 12). Others, such as those representing l’Association des médecins psychiatres du Québec (AMPQ), Dying with Dignity and the End-of-Life working group, were critical of the government’s initial choice to exclude mental illness. Dr Mona Gupta claimed that the exclusion of mental illness sent the message “that it is acceptable to treat people with mental illnesses differently from others,” whereas the AMPQ “believe our patients must be entitled to exercise the same rights as all other persons” (Canada 2020e, 11). Likewise, former senator James S. Cowan, representing Dying with Dignity Canada, claimed that the organization “believes this exclusion to be stigmatizing, discriminatory and likely unconstitutional” (Canada 2020d, 19).
Bill C-7 during the Senate amendment
On 10 December 2020, Bill C-7—with mental-illness eligibility excluded—passed third reading in the House of Commons and entered first reading in the Senate. Between 10 December 2020 and 17 February 2021, the bill completed second reading, was referred to the Standing Senate Committee on Legal and Constitutional Affairs (which issued a report) and was ultimately passed with amendments and sent to the House for consideration. The most prominent amendment represented a considerable change to the bill. Although the mental health exclusion in subsection 1(2.1) was retained, the new version contained an amendment that had been proposed by psychiatrist Senator Kutcher of the Independent Senators Group on 9 February 2021: “Subsection 241.2(2.1) of the Act is repealed,” with a provision that this text repealing that section “comes into force 18 months after the day on which this Act receives royal assent.” This amendment, which would repeal the mental health exclusion eighteen months after the passage of the law, was approved by 57:21 in the Senate on 8 February 2021 (Canada 2021a, 854; Canadian Press 2021b). After much consideration between the Senate and the House of Commons over the next month, the House eventually passed the law with a modification to Senator Kutcher’s amendment: the final version of the section repealing the mental health exclusion would come into force “on the second anniversary of the day on which this Act receives royal assent” (two years after passage, which would have been 17 March 2023). Thus, Senator Kutcher’s amendment—slightly altered from eighteen to twenty-four months—was included in the final version of the law.
In justifying the amendment, Senator Kutcher combined a number of practical, ethical and constitutional justifications. In terms of practice and ethics, he argued that the lack of a definition of mental illness in the bill could lead to confusion for physicians; that it would exclude those with neurocognitive illnesses; that it could produce MAID tourism between provinces; and that it could even lead to criminal liability for physicians (Canada 2021a, 851–52). In particular, Kutcher emphasized that the exclusion was arbitrary because Bill C-7 permitted MAID for individuals with both physical and mental illnesses, even when mental illness was the predominant source of suffering, while categorically prohibiting MAID for those with a sole grievous and irremediable mental disorder—a distinction that he described as “indefensible.” Kutcher claimed the law
makes a criminal of a health care provider who has participated in MAID for a person with a sole mental disorder, while at the same time it respects the professionalism and competency of a health care provider who has participated in MAID for a person who has both a mental disorder and another illness. (Canada 2020a, 717)
Kutcher subsequently made direct reference to the law’s constitutionality, quoting a November 2020 brief from the Canadian Psychiatric Association (CPA) that the exclusion clause was “stigmatizing, discriminatory, and, thus, likely unconstitutional” (ibid.), echoing the language from Dying with Dignity Canada described above. The CPA brief called the exclusion clause “vague, arbitrary, and overbroad”—terms used in the Supreme Court’s jurisprudence to determine a violation of the right to life, liberty and security of the person in section 7 of the Charter (ibid.).
Noting that Bill C-14 (2016) had been successfully challenged in court as a Charter violation and that the Alberta Court of Appeal had rejected the argument that those with psychiatric conditions were expressly precluded from MAID, Kutcher framed his amendment as part of a need to proactively avoid future legal challenges: “the Senate should not try to anticipate what the courts will decide, but surely our role is not to intentionally pass legislation that would force people into court again because we did not sufficiently take Charter rights into consideration and because we ignored what the courts already ruled” (Canada 2021a, 852). The language of a Charter violation was an important part of Kutcher’s argument; in invoking the concept of autonomy, for example, Kutcher evoked the Supreme Court’s language from Carter, noting that MAID must be implemented “to recognize the autonomy of Canadians who decide to relieve their intolerable suffering associated with a medical condition” (Canada 2021a, 852).
Bill C-7 after the Senate amendment: Concerns with Charter constitutionality
Why did the government, which had been so adamant about the need to exclude mental illness, decide to accept Senator Kutcher’s amendment that would repeal the exclusion? Our analysis shows that Senator Kutcher’s use of a Charter-rights framing played a pivotal role in persuading the minister of justice to accept the amendment. In a speech on 23 February 2021, Justice Minister Lametti stated that, although he believed “the mental illness exclusion is constitutional because it serves a protective purpose and is narrowly crafted,” he nevertheless proposed keeping the sunset clause (but extending it from eighteen to twenty-four months), which would allow time for further consideration:
I also hear the concern expressed by Canadians that this exclusion fails to address the issue of whether and when the provision of MAID will be permitted to alleviate intolerable suffering due to mental illness. That is why I propose that we support the sunset clause, but with an amendment so that it would repeal the mental illness exclusion after 24 months instead of after 18 months. (Canada 2021b, 4416)
During these post-Senate hearings, Lametti and Virani emphasized two themes: that the legislation needed to pass because the Truchon deadline was expiring at the end of the month and that the new twenty-four-month sunset clause on mental illness would permit the government time to study the issue. The Truchon deadline had been important for Lametti from the beginning; in November 2020, Lametti had noted that, while the bill’s progress had been delayed by COVID-19, “our government’s top priority is to meet the deadline set by the Quebec Superior Court in the Truchon and Gladu case” (Canada 2020c, 788). With that deadline—which had been extended four times because of the 2019 election and the COVID-19 pandemic (Downie and Scallion Reference Downie, Scallion, White and Lindy2021, 37)—set to expire at the end of February, Lametti urged parliamentarians to pass the law with the new amendment, noting that “[i]f the suspension period expires without the passage of Bill C-7, Truchon would come into effect without the benefit of the protection, safeguards and exclusions of our proposed bill” (Canada 2021b, 4417). Citing the government’s extensive consultations, Virani noted that “[t]ens of thousands of Canadians have contributed in one way or another. Should we not be attempting to get this thing through to meet the court deadline?” (Canada 2021b, 4471). Lametti added that “[t]he [Quebec] court was clear that it will not grant us another extension”; that “[t]he deadline carries with it serious consequences”; and that “[w]ith regard to mental health, it was always going to be the subject of a parliamentary review” (Canada 2021c, 4923).
Interestingly, during these hearings, both Lametti and parliamentary secretary to the government House leader Kevin Lamoureux indicated that the reason they were not appealing the Truchon decision, which struck down the RFND requirement, was that they did not believe the government would win. Lametti claimed that “[h]ad we appealed the decision through the court of appeal […] we strongly believed legally we would lose on its constitutionality. The reasoning of the Quebec Superior Court was compelling and it will ultimately be upheld.” Likewise, Lamoureux said: “We are in this position now because of a specific superior court ruling from the province of Quebec […] we need to have legislation dealing with medical assistance in dying and […] it needs to comply with our courts” (Canada 2021b, 4418; Canada 2021c, 4926).
Senator Kutcher’s amendment appears to have shifted the government’s view of the need for more time to study the issue of mental illness. Recall that, in November 2020, Lametti noted that the “exclusion gives Parliament more time to reflect on this complex question, which is fraught with serious risks, to determine whether it is possible to craft a safe MAID regime for this category of persons” (Canada 2020d, 2, emphasis added). In February 2021, Lametti noted that the twenty-four-month sunset clause, while “an ambitious timeline to implement such an important change in Canada’s MAID policy,” nevertheless “still provides a fixed timeline in the relatively near future for considering MAID eligibility on the basis of mental illness” (Canada 2021c, 4416). Virani likewise added that, with respect to mental illness, the twenty-four-month period would provide adequate time “for Parliament to consider how to do so and whether to do so”—providing an early indication that the sunset clause could always be extended (Canada 2021b, 4433).
Yet, Virani also added another reason to remove the mental-illness exclusion, albeit with a twenty-four-month sunset clause: that the government’s commitment to the timeline would reduce the likelihood of litigation. As he stated in the House:
What the sunset clause would do […] is commit to a definite timeline for eligibility of persons whose only medical condition is mental illness. This would reduce the risk that some Canadians would feel the need to challenge the exclusion before the courts […]. It would also provide them with the certainty that two years following royal assent of Bill C-7, eligibility on the basis of mental illness would be considered with the requisite safeguards attached. (Canada 2021c, 4435)
Thus, it is clear that Senator Kutcher’s amendment contributed to a shift in the government’s strategy and framing: rather than excluding mental illness indefinitely, the government claimed the twenty-four-month period would provide sufficient time to study MAID and mental illness, while simultaneously providing sufficient legal cover to prevent a Charter challenge. Overall, the federal government’s framing shifted from cautious exclusion to cautious inclusion, with the inclusion of mental illness deemed legally necessary to avoid litigation.
Bill C-39 and Bill C-62: Deferring the mental-illness inclusion
Bill C-7 passed with Senator Kutcher’s amendment in March 2021 and the two-year exclusion was set to expire on 17 March 2023. However, in March 2023, the government further extended the sunset clause by a year (to 17 March 2024) with Bill C-39, which received royal assent on 9 March 2023. The parliamentary debate over Bill C-39 included lively discussion on several issues, including debates over clinicians’ ability to assess “irremediability” (see Canada 2023a, 11612–13) and debates over a high-profile news story involving a veteran who was reportedly offered MAID during a phone call with a Veterans Affairs caseworker, which Conservative MPs likened to a MAID regime that had created a culture of “hopelessness” (Canada 2023b, 11772–73, 11778; see Brewster Reference Brewster2022). There was also considerable criticism from the Conservative MPs of the government for not appealing Truchon and for going beyond what was required by the Supreme Court’s Carter ruling (see Canada 2023b, 11785, 11798).
However, because Bill C-39 only involved a single amendment to extend the mental-illness sunset clause by a year, the debate primarily concerned that extension. Several Liberal MPs and cabinet ministers drew from expert evidence—particularly from organizations such as CAMH and the Special Joint Committee on MAID—to explain the government’s newly cautious stance in justifying the need for further delay. In his sponsor’s speech for Bill C-39, Justice Minister Lametti claimed an extension “would help ensure health care system readiness,” would permit “more time for the dissemination and uptake of key resources by the medical and nursing communities, including MAID assessors and providers” and would “give the federal government more time to meaningfully consider the report of the Special Joint Committee on Medical Assistance in Dying […] which is expected this week” (Canada 2023a, 11578).
Likewise, Gary Anandasangaree, then-parliamentary secretary to the minister of justice, expressed that “it is very clear that we should be going forward” with permitting mental illness, but emphasized “a need for prudence and a need to ensure there is a little more time available for experts to be ready with the right training” (Canada 2023a, 11584). Liberal MP Élisabeth Brière explained how deferring the repeal of the exclusion would lead to a MAID framework that is “prudent, well-thought out, and rigorous” to ensure safety, as “it is crucial to strike a balance between promoting the autonomy of those seeking a dignified end and protecting the interests of those most vulnerable in our society.” Liberal MP Ya’ara Saks likewise stressed that the government was “asking for time for exactly that reason, so that we understand the depth of the treatments and options” (Canada 2023b, 11776, 11803).
One year later, Parliament passed Bill C-62, which extended the deferral of the potential inclusion of mental illness for an additional three years, until March 2027. On this occasion, the government’s justification was that health-care professionals and provinces required additional time to develop appropriate safeguards and guidelines. Arif Virani, who was now the minister of justice, stressed the need for time to ensure there were sufficient safeguards for the vulnerable—incidentally, a major theme emphasized in the Bill C-14 response to Carter from 2016. In 2024, Virani referenced Carter directly, saying that “the balance that we are trying to craft, and have tried to craft since 2016, in response to the Carter decision” had to contend with “promoting the dignity and the autonomy of an individual” on the one hand and “ensuring that we are protecting vulnerable people with adequate safeguards so they are not victimized” on the other. “In this context,” Virani noted, “the safeguards and the protection are critical in the context of those who are mentally ill. That has been [the] guiding theme here” (Canada 2024a, 20995).
The government’s emphasis on safeguards was reinforced through references to support from key stakeholders. James Maloney, parliamentary secretary to the minister of justice, noted that “Parliament extended the exclusion for an additional year after organizations such as the Association of Chairs of Psychiatry in Canada and CAMH expressed a need for additional time. The Special Joint Committee on Medical Assistance in Dying, or AMAD, also supported the extension” (Canada 2024a, 21011). Virani also cited a perceived lack of readiness from the provinces:
[P]roceeding in a situation where the provinces have spoken with one voice, saying that provinces and territories are not ready to deliver medical assistance in dying for people who have mental illness as their sole underlying condition, in that context, we have to listen to those provinces and work with those provinces to help them with their readiness. (Canada 2024a, 20995)
This theme of provincial readiness was echoed by other Liberal MPs. Maloney claimed: “Over the past year, important progress has been made to prepare for the expansion, but provinces and territories are at varying stages of readiness”; Élisabeth Brière said: “the provinces and territories have expressed concerns regarding the current March 2024 timeline and are asking for more time”; and Yasir Naqvi noted that, with respect to “the provinces and territories, which are primarily responsible for delivering health care,” the government needed “to listen to them carefully, and they are asking for an extension” (Canada 2024a, 21011, 21081; Canada 2024b, 21150). The Bloc Québécois did not agree that the provinces had “spoken with one voice”; Bloc MP Luc Thériault pushed for an amendment that would allow Quebec to move forward with its own expansion instead of waiting on the federal government, claiming, “The National Assembly is unanimous: Quebec is ready. It has its own legislation.” However, Virani responded by stressing the importance of uniformity in MAID availability: “Canada has one Criminal Code, and for good reason. Canadians deserve consistent standards and clarity about what is criminal. There is no quick way to safely allow an exception for Quebec on this issue” (Canada 2024a, 21030).
Thus, with both Bill C-39 (the one-year extension in 2023) and Bill C-62 (the three-year extension in 2024), the federal government emphasized “prudence” and a lack of system readiness, with a primary focus on ensuring that health systems were adequately prepared to handle the complexities of mental health assessments. With Bill C-62 in particular, there was more of a shift to focus on provincial readiness, emphasizing the provincial role over health care.
Discussion and conclusions
In this article, we have examined parliamentary debates and committee hearings between 2020 and 2024 to answer two key questions regarding the development of MAID policy in Canada. First, which factors influenced Parliament’s initial decision to expand MAID eligibility to include those with mental illness? Second, which factors contributed to the subsequent deferrals of this inclusion? The above evidence shows how the initial expansion of MAID to include mental illness was in part shaped by concerns related to courts and the Charter, namely the looming deadline after the Truchon decision and Senator Kutcher’s framing of the inclusion as a Charter requirement. The deferrals, by contrast, were driven by concerns about the lack of system readiness, particularly the readiness of provincial health-care systems.
The above analysis provides a case study for how judicial decisions, and the threat of future litigation, can influence legislative outcomes in unforeseen ways. The most prominent example is with respect to the government’s changing stance on mental illness in Bill C-7 (2021). Our analysis of the early (pre-Senate) Bill C-7 debates shows that the government initially expressed no intent to include mental illness as a criterion for MAID. The government’s priority was to meet the constitutional threshold set by the Quebec Superior Court in Truchon (2019), particularly the removal of the RFND requirement. The government initially viewed the inclusion of mental-illness eligibility as beyond the immediate constitutional requirements of the Truchon ruling. However, the government’s framing regarding mental illness shifted considerably after Senator Stan Kutcher introduced an amendment that would repeal the exclusion after eighteen months. While the government had been justifying the exclusion of mental illness in the House of Commons in late 2020, by early 2021, it was justifying a sunset clause that, absent future amendments, would include mental illness as a criterion for MAID.
In describing the reasons for Parliament’s deference towards Truchon on the RFND requirement, Kelly (Reference Kelly2024, 283–84) identified three factors: supportive public opinion, the ascension of David Lametti as justice minister and the parliamentary dynamics associated with the post-2019 minority government (whereby the government required the support of the NDP or the Bloc Québécois to pass legislation). All three of these factors incentivized the passage of more permissive MAID legislation, and the inclusion of mental illness as a sole criterion for MAID certainly made the legislation more permissive. However, they do not fully explain why the government ultimately changed its mind with respect to mental illness in the face of the proposed Senate amendment. In this article, we argue that two additional factors, both related to the Charter and the judiciary, influenced the government’s decision to change course: first, the looming deadline of the expiry of the suspended declaration of invalidity in the Truchon decision, which meant the government needed to pass its legislation quickly; and, second, a desire to avoid future litigation on the exclusion of mental illness. The sunset clause, framed as a concrete timeline for Parliament to study and consider the potential inclusion of mental illness, also served as a means to avoid immediate Charter challenges.
Taken together, these Charter-related considerations reinforced the minority-government dynamics identified by Kelly (Reference Kelly2024), helping to secure the Bloc Québécois and NDP support necessary for the bill’s passage. This can help explain why the Liberal government rejected Senate amendments to Bill C-14 that proposed to remove the RFND requirement for Charter reasons (see Kelly Reference Kelly2024, 252), but accepted Senator Kutcher’s amendment to Bill C-7, albeit with a slight alteration. The new parliamentary context and heightened sensitivity to judicial risk reshaped the government’s incentives when confronted with Senate intervention.
However, with the passage of time, the government subsequently came to view the length of the sunset clause as insufficient. In Bills C-39 (2023) and C-62 (2024), the government twice deferred the inclusion of mental illness, eventually extending the sunset clause to March 2027. In doing so, the government framed the deferral as one that experts deemed necessary and as a requirement due to a lack of provincial readiness. By explicitly attributing the need for deferrals to the provinces, the federal government distanced itself from direct responsibility for implementation delays. Instead, it framed these subsequent deferrals as evidence-based, cautious and responsible responses to new or ongoing stakeholder concerns—even though those concerns had also been clearly articulated during the initial debates on Bill C-7 in 2020/21. In retrospect, when it accepted Senator Kutcher’s amendment in 2021, the federal government did not foresee the logistical and ethical challenges of rolling out MAID for mental illness at the pace set out in the final version of Bill C-7.
This case study provides several contributions to our understanding of two issues that have long captured the attention of political scientists and legal scholars interested in the dynamics between courts and legislatures: interinstitutional “dialogue” and the “judicialization of politics.” With respect to dialogue, this article builds on the work of James Kelly (Reference Kelly2024) to show how the policy implementation of Charter decisions is far from straightforward. As Kelly notes, Canadian courts are “implementer-dependent institutions,” insofar as they are “reliant on Parliament and the provincial and territorial assemblies to introduce legislative responses when the Court declares statutory provisions unconstitutional.” In such circumstances, legislative compliance depends on a wide range of factors, including public opinion and issue salience (2024, 4, 12). In the context of MAID policy, Kelly describes the shift in the Trudeau government’s response between Carter (Bill C-14) and Truchon (Bill C-7) as representing a “breakneck retreat from legislative defiance in 2016 to compliance”—one he attributes primarily to the growing popularity of the Carter decision, the dynamics of minority government within Parliament during Bill C-7 and the replacement of Jody Wilson-Raybould by David Lametti as justice minister (249, 267, 283–84).
We build on Kelly’s work in two ways. First, in addition to “compliance” and “noncompliance,” our analysis of the parliamentary debates over Bill C-7 in particular shows an example of the federal government engaging in what we call “future-oriented compliance.” By extending MAID eligibility to mental illness, Bill C-7 did not merely comply with Truchon—it sought to prospectively comply with future litigation that might occur if mental illness had been excluded. The government’s shifting narrative before and after Senator Kutcher’s amendment to Bill C-7 highlights how the evocation of prospective Charter litigation can shift government priorities, especially in the face of an expiring judicial deadline. The government’s justification that the sunset clause for mental-illness exclusion would “reduce the risk that some Canadians would feel the need to challenge the exclusion before the courts” (Canada 2021c, 4435) suggests that repeated judicial “losses” in quick succession can incentivize governments to “Charter-proof” laws even further to prevent future litigation. Second, and relatedly, the subsequent bills deferring the mental-illness inclusion (Bills C-39 and C-62) show how, in the long run, implementation concerns can override such future-oriented compliance. Ultimately, given the perceived lack of system readiness, the federal government was unwilling to implement the inclusion of mental illness, even if it meant that such litigation would proceed. Perhaps unsurprisingly, that litigation has indeed begun, with a Charter challenge against the exclusion of mental illness launched in August 2024, supported by Dying with Dignity Canada (Canadian Press 2024).
Our analysis also contributes to a deeper understanding of the effects of the “judicialization of politics.” In his famous 1983 article, Peter Russell (Reference Russell1983) wondered whether the Charter would create a scenario whereby “questions of social and political justice will be transformed into technical legal questions.” This was prominent in MAID debates during Bill C-7: when responding to opposition MPs or witnesses who expressed concerns about the inclusion of mental illness, the government frequently highlighted how existing judicial decisions constrained the available policy options (Canada 2024b, 11617, 11622, 11659). Just as McNabb and Baker found with respect to the parliamentary process over the Trudeau government’s rape shield legislation in 2017/18, “implementation problems are minimized while legal and constitutional questions dominate” (Reference McNabb and Baker2021, 25). Yet, our findings also highlight a more subtle mechanism inherent to the judicialization of politics: the importance of judicially imposed deadlines, via suspended declarations of invalidity, in constraining the perceived range of legislative choices. An often-overlooked aspect of judicialization is the judicial ability to impose deadlines via such declarations. Throughout the debates on Bill C-7 in particular, the government’s urgency to meet the (already-extended) judicial deadline remained in focus—a situation remarkably similar to the rush to pass Bill C-14 in 2016 (see Snow and Puddister Reference Snow, Puddister and Macfarlane2018). This shows how suspended declarations, including extensions to such declarations, represent a key mechanism through which politics are further judicialized, not only through the courts’ direct influence on the law, but also through the ability of courts to engage in ongoing supervision of a policy dispute.
Finally, our analysis suggests that the inclusion of sunset clauses can create a highly unstable policy environment, particularly with respect to policy fields subject to Charter litigation. The inclusion of a sunset clause, designed in part to forestall litigation, has (thus far) created two entirely new policy cycles during which the federal government needed to return to the issue of MAID. In the interim, the opinion environment shifted, as media reports put the spotlight on several examples of patients—including veterans at Veterans Affairs Canada—who were offered MAID in controversial circumstances (Boynton Reference Boynton2023; Kirkey Reference Kirkey2024; Stephenson and Boynton Reference Stephenson and Boynton2022). These media reports, cited by opposition MPs who were against the expansion of MAID during the parliamentary hearings, contributed to a narrative that Canada’s MAID regime was already too permissive during a period when Parliament was debating whether it should become more permissive. At the same time, a counter-narrative developed, as advocacy groups such as Dying with Dignity Canada grew impatient with continual deferrals, framing them as stigmatizing and discriminatory while citing evidence from health-care professionals and senators indicating readiness for expansion. Eventually, Dying with Dignity launched its own Charter challenge against the continued exclusion of mental illness, seeing the repeated deferrals as insufficiently protective of Charter rights (Dying with Dignity Canada 2024). The MAID experience highlights the unintended consequences of using sunset clauses to manage politically and ethically sensitive reforms.
Overall, our analysis suggests that Parliament’s approach to Charter decisions on MAID has not been a straightforward process of compliance or noncompliance, but rather an ongoing repositioning of its stance in response to judicial directives, public opinion and implementation concerns from stakeholders and provinces. The use of a sunset clause for mental illness, designed as a temporary safeguard to permit future study and avoid litigation, has fostered an ongoing cycle of reconsideration and deferral, leaving MAID policy unsettled going forward. The federal government’s effort to buy time has instead extended uncertainty, offering a cautionary lesson for legislators navigating future Charter-sensitive policy domains.
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