Brosseau et al v. Attorney General of Canada, 2026 ONSC 3619

CITATION

CITATION: Brosseau et al v. Attorney General of Canada, 2026 ONSC 3619

COURT FILE NO.: CV-24-00725921-0000

DATE: 20260619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Claire Elyse Brosseau, Dr. Patricia Smith, and Dying With Dignity Canada

– and –

Attorney General of Canada

Michael Fenrick, Sonia Patel, Grace Bryson, for the Applicants

Joseph Cheng, Andrew Law, Ryan Deshpande, Margaret Cormack, for the Respondent

HEARD: In Writing

Peter J. Henein, Brandon Chang and Irina Samborskie, for Canadian Civil Liberties Association

Hugh Scher, for Euthanasia Prevention Coalition

Patrick Martin-Ménard, for Association des groupes d’intervention en défense des droits en santé mentale du Québec

Nicolas M. Rouleau, for Inclusion Canada

Mathen, J.

REASONS FOR JUDGMENT

INTRODUCTION

1This is a motion for leave to intervene brought by four groups.

2The Applicants challenge the constitutional validity of a legislative provision that excludes individuals with the sole underlying medical condition of mental illness (“the condition”) from eligibility from medical aid in dying (“MAID”).

3The Application is still at the evidence stage and has not been set down for hearing.

4On May 4, 2026, the Applicant Ms. Brosseau filed an Urgent Motion seeking, among other things, a constitutional exemption under s. 24(1) of the Canadian Charter of Rights and Freedoms from the exclusion of individuals with the condition from eligibility for MAID as set out in s.241.2(2.1) of the Criminal Code, R.S.C. 1985, c. C-46.

5On May 21, 2026, Merritt J. ordered that any materials in support of motions for leave to intervene be served and filed by May 29, 2026.

6The Canadian Civil Liberties Association (“CCLA”) and the Euthanasia Prevention Coalition (“EPC”) seek leave to intervene in the motion and in the underlying application. The Association des groupes d’intervention en défense des droits en santé mentale du Québec (“AGIDD-SMQ”) says it seeks leave to intervene “in the appeal”, which I will assume means the motion and the application. Inclusion Canada seeks leave to intervene in the motion only. All of the proposed interveners seek to file a factum and to make oral submissions.

7The Applicants and the Respondent filed a joint letter with the court stating that they:

a. do not oppose this court granting leave to intervene on the motion; but

b. believe that the question of intervention in the broader application is premature and, therefore, any such requests should be deferred to a future date.

ISSUES AND BRIEF CONCLUSION

8The issues to be decided are:

a. Is leave to intervene in the July motion and/or underlying application warranted and, if so, for which of the proposed interveners?

b. What are the terms of any such intervention?

9I find it appropriate to grant leave to intervene in the July motion to all of the proposed interveners.

10I agree with the Applicants and the Respondent that it is premature to consider interveners for an Application.

ANALYSIS

11My findings are contained in the following analysis.

The Law

12Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, permits a non-party to intervene as a friend of the court “for the purpose of rendering assistance to the court by way of argument.” The test involves assessing “the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”: P.S. v. Ontario, 2014 ONCA 160, 317 O.A.C. 219, at para. 5, citing Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.) (“Peel”), at p. 167.

13In order to obtain leave to intervene in a constitutional case, a proposed intervener must usually meet one of the following criteria:

a. have a real, substantial and identifiable interest in the subject matter of the proceedings;

b. have an important perspective distinct from that of the immediate parties; or

c. is a well-recognized group with a special expertise and a broadly identifiable membership base.

Reference re Greenhouse Pollution Pricing Act, 2019 ONCA 29, at para. 8, citing Bedford v. Canada (Attorney General), 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2; Ontario (Attorney General) v. Dieleman (1993), 1993 CanLII 5478 (ON CTGD), 16 O.R. (3d) 32 (Gen. Div.). See also Fair Change v. Her Majesty the Queen, 2021 ONSC 2108, at para. 16; Martin v. Health Professions Appeal and Review Board, 2022 ONSC 1340 (Div. Ct.), at para. 53; Association for Reformed Political Action v. City of Hamilton, 2022 ONSC 6691, at para. 13.

14In constitutional cases, Ontario courts tend to apply the above framework generously: Heegsma v. Hamilton (City), 2025 ONCA 904, at para. 6, citing Peel, at p. 167; Fair Change, 2021 ONSC 2108, at para. 14; Halpern v Toronto (City) Clerk (2000), 2000 CanLII 29029 (ON SCDC), 51 O.R. (3d) 742 (Div. Ct.), at para. 16.

15Having said that, intervention is discretionary. The court must be satisfied that the proposed intervener will add something useful to the required analysis in the case at bar. The court must also maintain the integrity of the legal process.

Application

16For the following reasons, I am satisfied that the four proposed interveners should be granted leave to intervene in the motion on July 20-21.

The Nature of the Case

17The July 20-21 motion is brought in the context of a larger application with potentially significant consequences for the interpretation of, among other things, ss. 7 and 15 of the Charter and the framework by which access to MAID occurs. The motion and the application are of obvious public interest.

The Issues which arise

18The July 20-21 motion raises questions about Charter remedies and, in particular, the availability of constitutional exemptions on an interlocutory basis. In deciding the motion, the court may be called upon to interpret substantive Charter rights and to consider the applicable sociolegal context.

19At the same time, the motion concerns relief sought by an individual in relation to their particular circumstances. Any public interest intervenors have a somewhat attenuated role in that part of the analysis.

The Proposed Interveners

20Having reviewed the motion materials, I am satisfied that all of the proposed interveners meet one or more of the criteria for a proposed intervener: an identifiable interest in the subject matter; an important and distinctive perspective; and well-recognized membership/expertise.

21The CCLA has a long history of intervening in and litigating all manner of constitutional cases, with a particular focus on the Charter.

22The EPC is a not-for-profit organization with a substantial interest and concern about the proper and lawful application of MAID criteria and practices, as well as about the implications of their expansion. The EPC has a history of public interest intervention, including in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331.

23The AGIDD-SMQ is a Québec-based non-profit organization founded in 1990. It is a province-wide network composed of member organizations working directly with people affected by mental health systems and psychiatric interventions, administered primarily by people living or having lived with mental health problems. AGIDD-SMQ has participated in legislative consultations, public commissions, governmental working groups and policy debates about MAID.

24Inclusion Canada has defended the right of persons with disabilities throughout Canada. It says it is the only national organization that works solely on behalf of people with intellectual disabilities and their families. Since the Supreme Court of Canada’s decision in Carter, Inclusion Canada has actively taken part in the debates surrounding MAID, including through several court interventions, and is part of a coalition of disability organizations and two individual applicants that recently launched a constitutional challenge to the MAID regime.

Whether the proposed intervention will cause injustice to the parties or is otherwise inappropriate

25The main parties do not object to the proposed intervention in the motion.

26I find that the proposed interventions have the potential to assist the court in deciding the motion, subject to certain limitations and cautions.

27I reiterate that I am deciding on interventions in the motion returnable on July 20-21, 2026. I do not read Merritt J.’s endorsement as requesting that I consider motions in relation to the underlying application. In any event, I find it unnecessary and unwise to deal with the underlying application now. That application is likely to attract more interveners than the four who have submitted materials here. In addition, the evidence phase for the application is not complete and it is possible that the nature of the application could change. In view of all that, it is preferable that motions for leave to intervene be considered by one judge, after all proposed interveners have been provided an opportunity to request leave.

28I appreciate that the content of some of the proposed interventions is oriented, in part, to the underlying application. On its face, that application raises constitutional questions much larger in scope than the motion.

29I am sensitive to the fact that the July motion requires attention to, among other things, whether and how the Court appropriately may grant relief under s. 24(1) of the Charter. Section 24(1) generally requires some analysis of the claimant’s personal circumstances. It is essential that the interveners focus on the appropriate framework to decide the motion, without engaging with or taking a position on Ms. Brosseau’s situation.

30I will now consider each of the proposed interventions in turn.

31The CCLA proposes to address:

a. Arguments in relation ss. 7 and 15 of the Charter and, more generally, the availability of a s. 24(1) remedy at an interlocutory stage of a Charter application;

b. On s. 7, the relevant animating values of the section (in particular, personal autonomy and dignity), the proper approach to the assessment of compliance with the principles of fundamental justice, and the nature of constitutional dialogue between Parliament and the judiciary; and

c. On s. 15, the proper analytical framework to adverse impact discrimination.

32The CCLA recognizes that some of its proposed argument is oriented towards the application where the court will be asked to consider granting relief under s. 52 of the Constitution Act, 1982. I am satisfied that the CCLA appreciates which arguments are relevant to the motion and which are not. Where the CCLA plans to rely on evidence, including social science evidence, it must draw from material in the motion record or from findings of fact in other cases.

33Subject to those comments and the terms outlined below, the CCLA may intervene.

34The EPC proposes to address a number of points, which I understand to be:

a. the dignity and autonomy of vulnerable people with mental illness that is undermined by the expansion of MAID to people with mental illness;

b. the concerns expressed by psychiatrists, including those affiliated with EPC, about the lack of access to resources, social and medical supports to people with mental illness and mental health disabilities;

c. regardless of access to mental health resources and supports, how the proposed expansion of MAID to mental illness alone represents a significant departure from the core safeguard of irremediability;

d. the proposed expansion of MAID for mental illness only is contrary to Parliament’s express intent to defer this practice, in order to develop adequate safeguards and controls;

e. the risk that expanding access to MAID, while depriving people with mental illness of access to healthcare resources and supports, will increase rates of suicidality in people with mental illness, while at the same time depriving them of resources and supports that would significantly improve their lives;

f. the proposed expansion of MAID would result in violations of ss. 7 and 15 of the Charter for people with a mental illness;

g. the lack of proportionality between the proposed expansion of the law and a government objective of safely expanding MAID for mental illness only;

h. the lack of justification, including on grounds of arbitrariness and equal application of the rule of law, for the Applicant’s request for an individual constitutional exemption;

i. the failure in the main Application and on the Emergency Motion to acknowledge (a) the often transitory nature of requests for suicide and assisted suicide, which are common to people with mental illness, and (b) how that transitory nature leads to discrimination;

j. the significant stigma associated with mental illness, which is increased by unilaterally expanding access to MAID by judicial decree;

k. the fact that “complex regulatory regimes are better created by Parliament than by the Courts”;

l. this Court’s inability to weigh and balance all of the competing societal interests, including those affecting people with mental illness as a group, those concerning the risk of increased suicidality, as well as the views held by leading psychiatrists that mental illness is not irremediable; and

m. the risk that MAID availability for persons with mental illness will disrupt psychiatric care by undermining hope and the persistence necessary for longer treatment regimens.

35Some of EPC’s proposed arguments are more suitable for the underlying application. EPC must appropriately tailor its intervention to issues that arise on the July motion. EPC must not introduce any new evidence.

36Subject to those comments and the terms outlined below, the EPC may intervene in the motion.

37AGIDD-SMQ says that it can assist the Court in understanding:

a. the historical marginalization and stereotyping of people living with mental health conditions;

b. the effects of paternalistic assumptions in mental health law and policy;

c. the importance of respecting the legal capacity and autonomy of persons living with mental illness;

d. the diversity of experiences among persons living with mental health conditions; and

e. the practical operation of mental health systems and decision-making frameworks affecting affected individuals.

38AGIDD-SMQ’s focus on social context could be useful to the court. AGIDD-SMQ must not introduce any new evidence.

39Subject to the terms outlined below, AGIDD-SMQ may intervene.

40Inclusion Canada says that it takes a distinct perspective on the issues, because of its view that the existing legislation “fails to protect the constitutional rights of people with disabilities by exempting them from the protections offered by the criminal law of culpable homicide and aiding suicide.” It proposes to make arguments about:

a. the requirement for caution, and, in particular, to avoid making findings that could bind the result of Inclusion Canada’s existing constitutional challenge;

b. the nature and appropriate role of constitutional exemptions; and

c. the balance of convenience that the court must consider when deciding to grant a stay of the mental illness exclusion.

41I find that Inclusion Canada’s proposed argument is suitable for the motion and has the potential to assist the court. Inclusion Canada may not introduce any new evidence.

42Subject to the terms outlined below, Inclusion Canada is granted leave to intervene.

ORDER

43In conclusion, I make the following order:

a. The four (4) proposed interveners, Canadian Civil Liberties Association, Inclusion Canada, Euthanasia Prevention Coalition, and Association des groupes d’intervention en défense des droits en santé mentale du Québec (the “Interveners”) are hereby granted leave to intervene as friends of the court pursuant to rule 13.02 on the motion scheduled to be heard July 20-21, 2026.

b. The requests for intervention in the main application shall not be determined at this time.

c. The Interveners’ submissions shall not duplicate those of the parties.

d. The Interveners’ submissions shall not raise any new issues.

e. The Interveners shall focus their submissions on the specific questions raised by the motion.

f. The Interveners shall make no written or oral submissions about Ms. Brosseau’s personal circumstances, including whether or not she suffers from any medical condition and the likelihood of treatment for any such condition.

g. The Interveners shall not adduce evidence, including in the guise of legal authority.

h. The Interveners’ factums shall be delivered no later than July 10, 2026, and shall be limited to 10 pages in length.

i. The Interveners shall each be limited to 15 minutes of oral argument.

j. The parties may file a responding factum to an intervener adverse in interest, not exceeding 5 pages per intervener, which will be filed no later than July 17, 2026 at noon.

k. The parties and the Interveners shall confer prior to the hearing of the motion to determine the Interveners’ order of appearance.

l. No costs may be ordered against the Interveners on the motion, nor shall the Interveners claim its costs.

m. There shall be no costs awarded in the motions for leave to intervene.

n. The attached Order shall issue.

Mathen, J.

Released: June 19, 2026

CITATION: Brosseau et al v. Attorney General of Canada, 2026 ONSC 3619

COURT FILE NO.: CV-24-00725921-0000

DATE: 20260619

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Claire Elyse Brosseau, Dr. Patricia Smith

and Dying With Dignity Canada

Applicants

– and –

Attorney General of Canada

Respondent