Ontario court denies Toronto woman’s motion to apply for MAID for mental illness

“(It is) yet another example of governmental systems telling people with mental illnesses that we do not have the same rights nor the same autonomy as others,” she said in a statement.

“Canada is clearly delivering a message. Despite its promise to be a country with equal rights, it is not. It doesn’t value bodily autonomy, or at least not for a certain kind of person, and it appears that I am one.”

Brosseau’s legal team argued in court on July 20 that she required emergency relief from persistent mental anguish that began when she was a child and has only intensified over the last 35 years.

She said she’s been treated for bipolar disorder, an eating disorder, substance use disorder and post-traumatic stress disorder. Brosseau said that for decades she has been trapped by a whiplash of manic and depressive states, likening it to standing on the ledge of a building and wanting to jump, but also believing she can fly.

When MAID legislation was first passed in 2016, it required someone’s death to be reasonably foreseeable in order to qualify. In 2021, the federal government revised the legislation to include people who are suffering intolerably with a serious and incurable illness or disability but whose death was not reasonably foreseeable.

It put a temporary exclusion in place for people whose suffering was solely from mental illness. The exclusion has been repeatedly extended, most recently until March.

As a result, Canadians are not eligible to apply for MAID on the basis of mental illness alone.

Mathen said in her decision that although she is dismissing Brosseau’s motion, she is ordering the federal attorney general to respond to a constitutional challenge she launched in August 2024, arguing that MAID’s exclusion of Canadians whose sole underlying condition is a mental illness is a breach of the Canadian Charter of Rights and Freedoms.

The case has not commenced in court, which ultimately led Brosseau to launch a separate urgent motion.

Mathen said Brosseau and the attorney general must schedule next steps for the charter challenge within 14 days.

She also said Brosseau’s evidence of suffering is credible and compelling.

“Over the months and, perhaps, years that this litigation will endure, she is at risk of significant harm,” Mathen said.

However, the judge said that the interests on the other side are considerable.

“They include Parliament’s role to make policy decisions on sensitive social issues, and the proper interpretation of the Charter rights in play.”

Brosseau said she has tried electroconvulsive therapy, cognitive behavioural therapy, rehabilitative treatment, and continues to see two psychiatrists, but none of the treatments have meaningfully addressed her constant pain.

Her lawyer Michael Fenrick argued in July that granting his client access to MAID is the “only meaningful solution” to her advanced state of irreversible decline. In its absence, he said, “her choice is between continuing to suffer – suffer intolerably – or to choose suicide.”

A spokesperson for the Department of Justice said Thursday that while it acknowledges “the difficult circumstances that led to this motion,” it agrees with the court’s decision that the legal requirements for granting a special exemption or pause of the law were not met in this case.

Joseph Cheng, senior counsel for the Attorney General of Canada, acknowledged at the onset of his arguments on July 21 that he does not dispute Brosseau’s suffering, but rather the legal principles of her motion and its potential implications.

Cheng argued that the court was being asked to make a policy decision on MAID eligibility, “one of the most contentious, complex and sensitive policy issues” at exactly the same time as Parliament is determining the course it will take.

A special parliamentary committee recommended in June that people with mental illness as the sole reason for seeking MAID should be “indefinitely” excluded from the life-ending procedure, and the government has not yet said whether it will heed that advice.

In essence, Cheng said, the judge was asked to “go and stand out there and be bold and take a move that parliament is unwilling to take.”

Helen Long, chief executive officer of Dying With Dignity Canada, said in a statement that while the decision was not what she was hoping for, it did place urgency on pushing forward the charter challenge.

“It is time for the government to take action on this larger case so the systemic challenges in MAID access for all eligible persons across Canada can finally be addressed,” Long said.

Sonia Patel, a member of Brosseau’s legal team, said it had always been their intention to move ahead with the charter challenge.

“We will continue to push that forward in hopes that eventually the law will allow Claire and others in her situation to make the kinds of fundamental decisions we think they should be allowed to under the charter,” she said.

This report by The Canadian Press was first published Sept. 3, 2026.

Hannah Alberga, The Canadian Press

by The Canadian Press

Ontario court denies Toronto woman’s motion to apply for MAID for mental illness

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