The two Liberal Cabinet ministers were asked by Hill reporters to react to Smith’s Jan. 31 video announcement on social media, after Holland introduced a controversial Criminal Code amendment Feb. 1 that would prohibit until 2027 the provision of medical assistance in dying (MAID) to those whose sole underlying condition is mental illness
Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2, would extend by three years the ineligibility for MAID of people whose sole underlying condition is mental illness. The present exclusion for mental disorder is set to expire March 17, 2024, but would not sunset until March 17, 2027, if Bill 62 becomes law.
Bill C-62 would also require a joint special Senate-Commons committee to undertake a “comprehensive review relating to the eligibility of persons whose sole underlying medical condition is a mental illness to receive MAID,” within two years of Bill C-62 receiving royal assent.
Health Minister Mark Holland
Holland said the request by seven provinces for an “indefinite” pause is a non-starter, partly because of constitutional jurisprudence. “There has to be an imperative to move towards a condition that recognizes the equivalency between mental and physical suffering,” he remarked. “There's a real risk — and Minister Virani can speak to the legal risk — if we don't act on that constitutionally. But there's a moral imperative for us to get the systems ready. So, by setting out a timeline of three years, it's an indication that the systems need to move towards readiness.”
Virani acknowledged that legislating a further three-year delay on MAID eligibility for a group of people who are experiencing intolerable and irremediable suffering due to a mental disorder — and who have already waited three years longer for MAID eligibility than those experiencing intolerable and irremediable physical suffering — could spark Charter challenges and requests for individual constitutional exemptions.
“I'm not going to speculate as to what a court will do or not do with respect to the decision we're taking today, he said, noting that courts have been “heavily involved” in issues around medically assisted death, going back to Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R. 519, Carter v. Canada (A.G), 2015 SCC 5 (striking down the Code’s blanket ban of assisted suicide) and Truchon v. Procureur général du Canada 2019 QCCS 3792.
“It is entirely possible that people will avail themselves of their rights in the court of law as they are able to under our Charter of Rights,” Virani observed. “That's a good thing if people want to pursue that route.”
“But the most important thing that people need to understand, particularly people . . . that are suffering right now, is that we understand their suffering,” Virani added. “We feel mental suffering needs to be treated similarly to physical suffering. We're putting in place as many supports as possible through the healthcare accord. . . to support [alleviation of] that suffering, and we're working hard to ensure that the healthcare system is ready to address that suffering, even through medical assisted dying, but it's going to take more time.”
Given the looming deadline, Holland said the minority Trudeau government is seeking cooperation from opposition parties to quickly enact Bill C-62. Conservative senators and MPs on the special joint Senate-Commons committee on MAID, which recommended by a majority Jan. 30, 2024 that Canada isn’t yet ready to safely and adequately provide MAID to people whose mental disorder is their sole underlying condition, called on the Liberal government this week to completely “abandon MAID for mental disorders.”
Holland said the government’s move to delay MAID eligibility for those with mental disorders for a further three years was not about politics — i.e. was not aimed at postponing the contentious issue until after the federal election in 2025 — but about ensuring Canada’s health system is ready.
However, both federal Cabinet ministers accused Alberta’s premier of playing politics at the expense of trans children and youth during her seven-and-a-half minute video announcement on social media Jan. 31 — a charge Smith rejected during a subsequent news conference.
“I'm deeply disturbed,” Holland told reporters when asked whether Ottawa is considering any push back, such as withholding the transfer of federal healthcare monies from Alberta. “We know that one of the number one reasons why kids take their life is. . . problems around sexual identity and the ability to be who you are is so vitally important,” Holland said.
“The decision that was made by Alberta places kids at risk,” the health minister said. “I think it's extremely dangerous to engage in this kind of thing, which is, I think, playing politics, when you're talking about children's lives. And so affirming gender, making sure that kids and families have the health care that they need on extremely sensitive issues, is so very important.”
Holland said he will be in Alberta “very soon” for a face-to-face meeting with Alberta Health Minister Adriana LaGrange, with whom he’s had “a very strong working relationship.”
“I want to talk through these issues,” he remarked. “I want to see if we can find a solution through talking, to really understand what this is going to mean and the devastation that it's going to bring, so that we can find an off-ramp.”
Virani noted that children don’t always feel empowered to discuss matters with their parents. “That's a small amount of children around the country, even smaller amounts in Alberta,” he observed. “I think actually targeting that small minority for some political purpose in Alberta, as it seems that the premier is doing, is not becoming of her office and is in fact actually targeting, and perhaps even demonizing, those children.”
Asked whether the federal government would take Alberta to court, Virani said Alberta’s government has announced what it has in mind, but it has not put forward any legislation. “There’s nothing to be taken to court, I’m not going to speculate,” he said.
In a subsequent news conference Feb. 1, Smith said her United Conservative Party of Alberta (UCP) intends to bring forward in the fall any legislation, regulations and policies needed to implement the measures she announced Jan. 31.
She outlined new restrictions on gender-affirming health care, requirements for parents to consent to their children using names and pronouns not assigned at birth, as well as a requirement that parents opt-in or opt-out their child each time a teacher is to discuss “gender identity, sexual orientation or human sexuality” in class.
Her government said it will also work with sporting organizations in the province to ensure “biologically-born” female athletes “are able to compete in a biological female-only division” without having to compete against transgender female athletes, while also expanding co-ed or other gender-neutral divisions for athletic competitions to ensure that transgender athletes are able to “meaningfully participate” in the sport of their choice.
Alberta’s premier told the news conference that she cares deeply for the happiness and well-being of transgender individuals. “As premier of this province, I will ensure your rights are always protected,” she said. “For children who identify as transgender, I want you to also know that these policies are being implemented in order to protect the choices you have regarding altering your physical body until after you've grown mature enough to make such choices safely, and with a full understanding of what that means for the rest of your life.”
“Gender identity can be a very emotional issue, especially in the context of children,” she noted. “And as we move forward developing and implementing these policies into law, I hope we can depoliticize the issue as much as possible, and focus on the well-being of the children involved.”
In a Feb. 1 press release, the government said that it will implement “the following health policies related to children identifying as transgender”:
- All gender reassignment surgeries for minors aged 17 and under will be prohibited (Alberta’s health care plan does not cover such surgery for those under 18, and Smith provided numbers only for those 18 and older).
- The use of puberty blockers and hormone therapies for the purpose of gender reassignment or affirmation will not be permitted for children aged 15 and under, except for those who have already commenced treatment.
- Mature teens, aged 16 and 17, may only choose to commence puberty blockers and hormone therapies for gender reassignment and affirmation purposes with parental, physician and psychologist approval.
Smith did not say what enforcement or penalties would attach to these prohibitions.
With respect to Alberta’s education system, the provincial government said it will implement these changes:
- Parents must be notified and opt in to any instance when a teacher provides formal instruction on subject matter involving gender identity, sexual orientation or human sexuality.
- All third-party resource materials or presentations related to gender identity, sexual orientation or human sexuality available in Alberta classrooms must be pre-approved by Alberta’s Ministry of Education to ensure they are age-appropriate.
- Parents must consent for their child aged 15 and under to alter their name or pronouns used by school teachers, administration and other educational staff.
- Parents must be notified for their child aged 16 or 17 to alter their name or pronouns used by school teachers, administration and other educational staff.
Alberta’s government said it is also developing “a counselling pilot project to help youth identifying as transgender and their families work through often difficult and complex issues and discussions.”
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