Debates of the Senate (Hansard)
2nd Session, 43rd Parliament
Volume 152, Issue 24
Monday, February 8, 2021
The Honourable Pierrette Ringuette, Speaker pro tempore
- SENATORS’ STATEMENTS
- ROUTINE PROCEEDINGS
- QUESTION PERIOD
- ORDERS OF THE DAY
THE SENATE
Monday, February 8, 2021
(Pursuant to rule 3-6(2), the adjournment of the Senate was extended from February 2, 2021 to February 8, 2021.)
The Senate met at 2 p.m., the Speaker pro tempore in the chair.
Prayers.
SENATORS’ STATEMENTS
Black History Month
Hon. Mary Coyle: Honourable senators, Nova Scotia rapper Classified captures the mood of the nation in his lyrics:
I’ve been waiting for some good news
For the clouds to part and the light to shine through
I wanna wake up to a better tomorrow . . .
It’s about time for some good news
February is Black History Month in Canada and African Heritage Month in Nova Scotia. Today, I would like to share some good news about African Nova Scotians.
Sierra Sparks, originally of Cherry Brook, is the ninety-second Dalhousie University Rhodes Scholar. She’ll be Oxford-bound to study pre-biomedical engineering.
Halifax actor Eli Goree has been earning rave reviews for his portrayal of Muhammad Ali in the film One Night in Miami.
Dr. Charmaine Nelson, Canada’s only Black art history professor, will use her new position as a Canada Research Chair to develop the Institute for the Study of Canadian Slavery at the Nova Scotia College of Art and Design.
Shawna Paris-Hoyte was named to the Order of Nova Scotia. This worthy lawyer, social worker, educator and advocate facilitated the first Black inmate forum and founded the National Institute for Forensic Social Work.
The Gloria Fisher Business Person of the Year Award was given to Samantha Dixon Slawter. A business and community leader, Samantha is dedicated to educating Nova Scotians about the cultural significance of Black hair and beauty.
Sylvia Parris-Drummond, CEO of the Delmore “Buddy” Daye Learning Institute, which is dedicated to Afrocentric learning and research, won the RBC Canadian Women Entrepreneur Award in the Social Change category.
Tara Reddick, nationally acclaimed Antigonish playwright, actor and mother of four, received the Frank McKenna Centre for Leadership, Racial Justice Leadership Grant at St. Francis Xavier University, for her “Speak, Change & Uplift” podcast series on experiences of Black motherhood and activism.
Celebrated spoken-word poet Andre Fenton released his second novel Annaka.
Kelsey Jones, director of Dalhousie law school’s Indigenous Blacks and Mi’kmaq Initiative, recently accepted the Canadian Bar Association – Nova Scotia Branch’s Excellence in Equity and Diversity Award on behalf of the institute.
Halifax city councillor Lindell Smith has been appointed as the new chair of the Halifax Board of Police Commissioners.
Finally, Reverend Dr. Rhonda Britton became the first woman of colour to be the president of the Canadian Baptists of Atlantic Canada.
With over 50 historic African-Nova Scotian communities dating back over 400 years, there are many people we could be celebrating. Colleagues, please join me in congratulating these African-Nova Scotian leaders mentioned today for being that light that shines through. Yes, indeed, you are the good news.
Some Hon. Senators: Hear, hear.
Hon. Robert Black: Honourable senators, I rise today to highlight Black History Month and the role that Black Canadians have had in agriculture.
Every February, Canadians are invited to celebrate the many achievements and contributions of Black Canadians who, throughout history, have done so much to make Canada the culturally diverse, compassionate and prosperous nation it is today.
Agriculture, as one of Canada’s oldest industries, has a history as vast and diverse as our country. In fact, agriculture existed on these lands long before Confederation. Indigenous peoples across the continent farmed the land for centuries before the first Europeans arrived. Later, French Acadians found the Maritimes particularly suitable for marshland farming and dairy production.
Unfortunately, few studies have examined and analyzed the historical role of Black Canadians in agriculture. Black farmers have a long history in Canada going as far back as Guysborough, Nova Scotia in the late 1700s; Buxton, Queen’s Bush and Dresden, Ontario in the mid-to-late 1800s; and Amber Valley, among other smaller communities in Alberta in the early 1900s.
Despite the many hardships they faced, including racism, a lack of access to modern farm equipment and the harsh Canadian winters just to name a few, these small settlements of Black farmers became successful and independent communities. However, important stories of Black people in agriculture have been neglected by mainstream accounts of Canadian history. This gap in history speaks to how Black farmers, among other racial minorities, have been positioned within the narrative of Canadian agriculture.
As a senator from rural Ontario with deep roots in the agricultural industry, I think it is high time that we re-examine the historical narratives of our nation, especially as it relates to land use and ensure that the stories from all walks of life are celebrated in a country as diverse as Canada.
I would also like to take this opportunity to highlight the recent announcements by the Beef Farmers of Ontario and the Grain Farmers of Ontario. Last month, both organizations issued strategic statements committing their organizations to a new culture of diversity, equity and inclusion. As noted by the Grain Farmers of Ontario statement:
Diverse life experiences, backgrounds and ideas at the table make organizations stronger, and finding ways to make the inclusion of everyone systemic will benefit every organization regardless of industry.
We all have a role to play when it comes to inclusion and working to end discrimination within the industry.
I could not agree more. Colleagues, I hope you will join me, not just this February but all year round, in making sure that the stories of all Canadians, regardless of race, ethnicity or sexual orientation, are honoured, shared and remembered for years to come.
Thank you, meegwetch.
Some Hon. Senators: Hear, hear.
The Manitoba 150 Women Trailblazers
Hon. Jane Cordy: Honourable senators, this past year has allowed many of us the time to reflect on our contributions to this world and how we choose to carve out our space in it. This can take many different forms, but I am of the opinion that our greatest hope is that we leave the world somehow better.
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I am delighted once again to be able to celebrate our colleagues who have made a difference and who have been recognized as trailblazers because of the good work they have done and continue to do. Senators Bovey, Gagné, McCallum and McPhedran have all been honoured by the Nellie McClung Foundation as part of the 150 Manitoba Women Trailblazers.
This comprehensive list spans the decades to include Nellie McClung herself, who as we know, is one of Canada’s most famous suffragists, and was a driving force in Canadian politics and in securing the right to vote in 1916 for most Manitoba women.
This list, however, does not only recognize politicians, but women or a collective of women from many different fields who have contributed greatly and made an impact on the development of Manitoba. It is incredible to read through this list of recipients, not to mention the longer list still of nominees.
It is not surprising that there are so many women doing so much good work within their communities, and I am delighted to see these women recognized and lifted up because of their work.
Honourable senators, while I could share with you the accomplishments of our colleagues and those who have been named in this list, and there is quite a lot to share, but what they have done is not the most important part of having earned the title trailblazer. The most important legacy of any trailblazer is the path they leave for others.
And so, while I admire the wonderful work of these 150 Manitoba women and especially the work of Senators Bovey, Gagné, McCallum and McPhedran, I also look ahead to the next list of 150 and the one after that and the one after that. I hope that you recognize that your leadership means that because you did, others will, too. Thank you.
[Translation]
Yazidi Refugees
Hon. Marilou McPhedran: As a senator from Manitoba, I recognize that I live on Treaty 1 territory, the traditional territory of the Anishinabe, Cree, Oji-Cree, Dakota and Dene, and the Métis Nation homeland.
[English]
Colleagues, today, I speak of something we all hold dear — family. For many of us and Canadians across the country, family is the most important thing in our lives. It bookmarks our days. It brightens our mornings and builds our memories.
It is because of this that I am honoured to work with civil society leaders, including Project Ezra in Winnipeg , to speak out for the eight families of Yazidi refugees now settled in Canada, some in Manitoba, who have been struggling for months to be reunited with family left behind in refugee camps.
These Yazidi families were torn apart in August 2014 when the Islamic State murdered thousands of Yazidi men, kidnapped thousands of women and girls and forced them into sexual slavery, and forced boys to become child soldiers. This has been declared a genocide by the United Nations.
When it needed to, Canada stepped up and pledged to welcome 1,200 Yazidi refugees in 2017, but we’re facing a failure, colleagues, a failure to bring over surviving family members. These Yazidi newcomers that we have welcomed to Canada cannot reach their full potential as new citizens of Canada when their families remain so fractured and there is so much anxiety over what’s happening to those who have not been reunited.
Yazidi refugees in Canada are adapting to our country. They are surviving; they are thriving in some cases; they are contributing. Now, they have to worry constantly about whether COVID-19 will hit their loved ones in cramped refugee camps, many of which lack the hygiene and medical support that’s needed.
Colleagues, 12-year-old Ayad was ripped from his family when he was kidnapped by the Islamic State at age 6 and held until age 11. He needs to come to Canada to be with his family. The spouses of Hadiya and Kahla need to see them again, to build their life together here in Canada. Twin brothers Nijman and Naji need to be with their older sister and brother again here in Canada.
I ask, please join me in holding the reunification of these families and other families of refugees who have been accepted into Canada as a priority. Get them here so they can be safe and strong and productive.
We’re a founding member of the United Nations —
The Hon. the Speaker pro tempore: Your time has elapsed, Senator McPhedran.
[Translation]
The Late Kathleen Heddle
Hon. Bev Busson: Honourable senators, I rise today to pay tribute to Kathleen Heddle.
[English]
On January 11, 2021, this amazing Olympian Kathleen Heddle died of cancer at the young age of 55. This is such a tragic loss for Canada and for my home province of British Columbia.
Kathleen Heddle was born in Trail, B.C. Her family moved to Vancouver while she was still a baby. While attending the University of British Columbia, she became a rower. She, along with her rowing partner Marnie McBean, won two Olympic gold medals in the 1992 Olympics in Barcelona in the pairs and in the eights. Again, at the 1996 Olympics in Atlanta, they won gold in the double sculls, which is a 2,000-metre competition that they led from beginning to end. They are the only Canadian athletes to have won three gold medals in the summer Olympic Games. They also won silver in the 1994 World Championship in rowing.
A fierce competitor, Kathleen Heddle faced her greatest challenge in battling for years against breast and lymph node cancer, and later, melanoma and brain cancer.
My dear colleagues, there is an inspiring quote from Kathleen that I would like to share with you: “How is it that amongst some of the worst days ever, you can experience some of the best?”
With this thought, I would like to remember this very special British Columbian and proud Canadian who has been described as a person of great resolve and even greater personal integrity.
Kathleen is survived by her husband, Mike Bryden, whom she married in October 2000. They have two teenage children: Lyndsey who studies at the University of British Columbia, a member of the rowing team there; and her son Mac.
To all who knew her, our deepest condolences. Thank you. Meegwetch.
[Translation]
ROUTINE PROCEEDINGS
Criminal Code
Bill to Amend—Third Report of Legal and Constitutional Affairs Committee on Subject Matter Tabled
Hon. Mobina S. B. Jaffer: Honourable senators, I have the honour to table, in both official languages, the third report of the Standing Senate Committee on Legal and Constitutional Affairs, which deals with the subject matter of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
[English]
Bill to Amend—Fourth Report of Legal and Constitutional Affairs Committee Presented
Hon. Mobina S. B. Jaffer, Chair of the Standing Senate Committee on Legal and Constitutional Affairs, presented the following report:
Monday, February 8, 2021
The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its
FOURTH REPORT
Your committee, to which was referred Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), has, in obedience to the order of reference of Thursday, December 17, 2020, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.
Respectfully submitted,
MOBINA S. B. JAFFER
Chair
(For text of observations, see today’s Journals of the Senate, p. 295.)
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[Translation]
The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the third time?
Hon. Chantal Petitclerc: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(b), I move that the bill be placed on the Orders of the Day for third reading later this day.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: Agreed.
(On motion of Senator Petitclerc, bill placed on the Orders of the Day for third reading later this day.)
[English]
Audit and Oversight
Second Report of Committee Adopted
Hon. David M. Wells, Chair of the Standing Committee on Audit and Oversight, presented the following report:
Monday, February 8, 2021
The Standing Committee on Audit and Oversight has the honour to present its
SECOND REPORT
Your committee, which was authorized by the Senate on Thursday, December 3, 2020, to consider and report on issues relating to the nomination of its external members to the Senate, respectfully requests funds for the fiscal year ending March 31, 2021 and requests, for the purpose of such study, that it be empowered:
(a)to engage the services of such counsel, technical, clerical and other personnel as may be necessary.
Pursuant to Chapter 3:06, section 2(1)(c) of the Senate Administrative Rules, the budget submitted to the Standing Committee on Internal Economy, Budgets and Administration and the report thereon of that committee are appended to this report.
Respectfully submitted,
DAVID M. WELLS
Chair
(For text of budget, see today’s Journals of the Senate, Appendix , p. 311.)
The Hon. the Speaker pro tempore: Honourable senators, when shall this report be taken into consideration?
Senator Wells: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(f), I move that the report be adopted now.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon Senators: Agreed.
The Hon. the Speaker pro tempore: Are honourable senators ready for the question?
Hon. Senators: Question.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and report adopted.)
Committee of Selection
Fourth Report of Committee Adopted
Hon. Terry M. Mercer, Chair of the Committee of Selection, presented the following report:
Monday, February 8, 2021
The Committee of Selection has the honour to present its
FOURTH REPORT
On November 19, 2020, the Senate referred Motion No. 19, under Other Business, to your committee for examination and report. The motion concerns the election of the Speaker pro tempore by secret ballot. On December 9, 2020, your committee presented an interim report concerning the designation of a Speaker pro temporeon an interim basis until the Senate decides otherwise. The report was adopted by the Senate on December 10, 2020.
Your committee has completed its examination of Motion No. 19, and in its final report, now recommends that for the remainder of this parliamentary session, the position of Speaker pro tempore be filled by means of a secret ballot, using a process to be established by the Speaker after consulting with the Leader of the Government, the Leader of the Opposition, and the leader or facilitator of any other recognized party or recognized parliamentary group.
For greater certainty, your committee notes that, once the secret ballot has occurred, the senator chosen through that process would replace the Speaker pro tempore designated on an interim basis pursuant to the earlier report, unless that senator is chosen in the secret ballot.
Respectfully submitted,
TERRY M. MERCER
Chair
The Hon. the Speaker pro tempore: Honourable senators, when shall this report be taken into consideration?
Senator Mercer: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(f), I move that the report be adopted now.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon Senators: Agreed.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and report adopted.)
Fifth Report of Committee Adopted
Hon. Terry M. Mercer, Chair of the Committee of Selection, presented the following report:
Monday, February 8, 2021
The Committee of Selection has the honour to present its
FIFTH REPORT
On October 29, 2020, the Senate authorized your committee to make recommendations to the Senate on issues related to meetings of either the Senate or committees by videoconference. Your committee now presents an interim report.
On November 17, 2020, the Senate adopted a motion authorizing standing Senate committees to hold hybrid meetings or meetings entirely by videoconference, subject to certain conditions, which was subsequently extended on December 17, 2020 to be in effect from February 1, 2021 to June 23, 2021. However, these two motions did not include provisions for standing joint committees.
On January 25, 2021, the House of Commons adopted a motion to authorize virtual and hybrid meetings for standing joint committees. Accordingly, your committee now recommends that:
a)the Senate authorize standing joint committees to hold hybrid meetings or meetings entirely by videoconference;
b)hybrid committee meetings or meetings entirely by videoconference be considered, for all purposes, to be meetings of the standing joint committee in question, and senators taking part in such meetings be considered, for all purposes, to be present at the meeting;
c)that for greater certainty, when a standing joint committee holds a hybrid meeting or meets entirely by videoconference:
i.all members of a standing joint committee participating count towards quorum;
ii.such meetings be considered to be occurring in the parliamentary precinct, irrespective of where participants may be; and
iii.the standing joint committees be directed to approach in camera meetings with all necessary precaution, taking account of the risks to confidentiality inherent in such technologies.
d)subject to variations that may be required by the circumstances, to participate in a meeting by videoconference senators must:
i.use a desktop or laptop computer and headphones with integrated microphone provided by the Senate for videoconferences;
ii.not use other devices such as personal tablets or smartphones;
iii.be the only people visible on the videoconference;
iv.have their video on and broadcasting their image at all times; and
v.leave the videoconference if they leave their seat.
That a message be sent to the House of Commons to acquaint that House accordingly.
Respectfully submitted,
TERRY M. MERCER
Chair
The Hon. the Speaker pro tempore: Honourable senators, when shall this report be taken into consideration?
Senator Mercer: Honourable senators, with leave of the Senate and notwithstanding rule 5-5(f), I move that the report be adopted now.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon Senators: Agreed.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and report adopted.)
(1430)
[Translation]
The Senate
Motion to Authorize Senators to Speak or Vote from a Seat Other Than Their Assigned Places until June 23, 2021, Adopted
Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:
That, notwithstanding rules 6-1 and 9-8(1)(b), until June 23, 2021, senators:
(a)may speak and vote from a seat other than their assigned places, including from a seat located in the Senate galleries, which shall be considered to be within the bar of the Senate;
(b)remain seated when speaking from a seat located in the Senate galleries; and
(c)may otherwise speak while either standing or seated.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
[English]
Motion Pertaining to Provisions of Third Reading of Bill C-7 Adopted
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:
That, notwithstanding any provision of the Rules, previous order or usual practice, proceedings relating to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), at third reading be governed by the following provisions:
1.on Monday, February 8, 2021, no amendment or other motion, except to adjourn debate or that a certain senator be now heard, shall be received;
2.proceedings on the bill between Tuesday, February 9, 2021, and the start of the final general debate provided for in paragraph 3 shall be subject to the following provisions:
2.1except as provided in subparagraph 2.8, the Senate shall deal with the bill according to the following themes in the indicated order, so that, once debate on one theme ends, the Senate shall proceed to debate on the next theme, without reverting to an earlier theme, and with speeches, amendments and subamendments not generally relating to the theme then before the Senate being out of order:
(a)mental illness and degenerative illness;
(b)safeguards and advance requests;
(c)vulnerable and minority groups, healthcare (including palliative care) and access to medical assistance in dying;
(d)conscience rights; and
(e)review process and coming into force of the act;
2.2the sitting of Wednesday, February 10, 2021, shall continue after 4 p.m. if debate on the bill is still underway at that time, until the earlier of the conclusion of those proceedings or 9 p.m., as if that earlier time were the ordinary time of adjournment on that day;
2.3the sitting of Monday, February 15, 2021, shall start at 2 p.m.;
2.4a senator:
(a)may speak once to the motion for third reading of the bill during the debate on each theme, for a maximum of 10 minutes, provided that a senator who sent the text of an amendment pursuant to subparagraph 2.7 and intends to move it may speak for a maximum of 15 minutes instead of the 10 minutes otherwise allowed; and
(b)may also speak once, for a maximum of 6 minutes, to any amendment and subamendment, unless that senator moved the amendment or subamendment;
2.5if a standing vote is requested on any motion relating to the bill, that vote shall not be deferred, and the bells to call in the senators shall ring for only 15 minutes;
2.6no motion, except that a certain senator be now heard, to adjourn debate or for a subamendment, shall be received while the Senate is considering an amendment to the bill, and no motion, except that a certain senator be now heard or to adjourn debate, shall be received while the Senate is considering a subamendment;
2.7if a senator wishes to move an amendment to the bill, the amendment must be sent to the Clerk of the Senate or his delegate, in both English and French, by 5 p.m. on the day before it is moved, and the Clerk or his delegate will provide it to the leaders and facilitators as soon as possible;
2.8if a point of order is raised in relation:
(a)to an amendment, the Speaker may direct that proceedings on the bill continue as if the amendment were not before the Senate pending his decision, and debate on the amendment shall resume after the ruling, if the item is in order, whether the ruling is given at that sitting or at a future sitting; or
(b)to a subamendment, the Speaker may give a similar direction, in which case debate on the amendment shall continue as if the subamendment were not before the Senate, provided that if debate on the amendment concludes before a ruling on the subamendment, the provisions of point (a) shall generally apply, with debate on the subamendment and the amendment resuming later that sitting or at a future sitting, if appropriate; and
2.9notwithstanding any other provision of this order, if technical reasons require a suspension of the sitting during debate on Bill C-7, or if, under the provisions of subparagraph 2.8, debate on an item from an earlier sitting resumes at a subsequent sitting, the time provided for the adjournment of the Senate on that day shall, until debate on the bill has finished for the day, be delayed by a period of time equivalent to both the length of any suspensions and the time taken to dispose of the amendment or subamendment, with this delayed time being considered the ordinary time of adjournment on that day;
3.once the thematic debate provided for in subparagraph 2.1 has concluded, the Senate shall begin a final general debate on the bill, and, once this debate starts, the Rules, orders and practices that would apply if this order had not been adopted — including, in particular, normal provisions relating to speaking times — apply in relation to proceedings on Bill C-7, except as follows:
3.1any prior speech relating to the bill shall not be counted as a speech for the purposes of rule 6-2(1);
3.2no amendment or other motion, except that a certain senator be now heard, shall be received until the bill has been decided upon at third reading;
3.3if a standing vote is requested on any motion relating to the bill, that vote shall not be deferred, and the bells to call in the senators shall only ring for:
(a)15 minutes for any vote other than the vote on the motion for third reading of the bill; and
(b)30 minutes in the case of a standing vote requested on the motion for third reading of the bill;
3.4on Wednesday, February 17, 2021, the sitting shall not be adjourned before the Senate has decided upon the bill at third reading, but it shall continue as required until that decision; and
3.5if, under the provisions of subparagraph 2.8, debate on an amendment or subamendment resumes during the final general debate, proceedings on that amendment or subamendment shall be governed by the relevant provisions of paragraph 2;
4.for greater certainty, all times in this order are Ottawa times;
5.when any provision of this order provides for a 15‑minute bell, any whip or liaison may require that, notwithstanding that provision, the bells instead ring for 30 minutes, except that in the case of the bells for a vote on the motion for third reading of the bill, any whip or liaison may require that the bells ring for 60 minutes, rather than the 30 provided for in point 3.3(b);
6.on any day that the bill is before the Senate, including a Monday, there shall be an evening suspension of one hour, to normally start at 6 p.m., provided that if, at that time, a senator is speaking in debate on the bill, the start of the evening suspension shall be delayed so as not to interrupt the senator’s intervention; and
7.the Law Clerk and Parliamentary Counsel is authorized to make any necessary technical, editorial, grammatical, or other required, non-substantive changes to or as a result of amendments adopted by the Senate, including the updating of cross-references and the renumbering of provisions; and
That, notwithstanding any provision of the Rules, previous order or usual practice, on Wednesday, February 17, 2021, the sitting continue, if proceedings on Bill C-7 are concluded, until the end of Government Business or 9 p.m., whichever comes first, provided that if proceedings on Bill C-7 conclude after 9 p.m., the Senate adjourn once those proceedings have concluded.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
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Income Tax Act
Bill to Amend—First Reading
Hon. Ratna Omidvar introduced Bill S-222, An Act to amend the Income Tax Act (use of resources).
(Bill read first time.)
The Hon. the Speaker pro tempore: Honourable senators, when shall this bill be read the second time?
(On motion of Senator Omidvar, bill placed on the Orders of the Day for second reading two days hence.)
Girl Guides of Canada Bill
Private Bill—Message from Commons
The Hon. the Speaker pro tempore informed the Senate that a message had been received from the House of Commons returning Bill S-1001, An Act respecting Girl Guides of Canada, and acquainting the Senate that they had passed this bill without amendment.
The Senate
Notice of Motion Pertaining to the Residential School System
Hon. Mary Jane McCallum: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Senate of Canada:
(a)acknowledge that racism, in all its forms, was a cornerstone upon which the residential school system was created;
(b)acknowledge that racism, discrimination and abuse were rampant within the residential school system;
(c)acknowledge that the residential school system, created for the malevolent purpose of assimilation, has had profound and continuing negative impacts on Indigenous lives, cultures and languages; and
(d)apologize unreservedly for Canada’s role in the establishment of the residential school system, as well as its resulting adverse impacts, the effects of which are still seen and felt by countless Indigenous peoples and communities today.
Motion to Print Speeches on Third Reading of Bill S-2 and Second Reading of Bill C-7 as Appendices to the Debates of the Senate of December 17, 2020, Adopted
Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, with leave of the Senate and notwithstanding rule 5-5(j), I move:
That, notwithstanding usual practice, the speeches by the Honourable Senators Coyle and Ataullahjan on the third reading of Bill S-2, An Act to amend the Chemical Weapons Convention Implementation Act, and the speech by the Honourable Senator Martin on the second reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), that they had intended to deliver on Thursday, December 17, 2020, be printed as appendices to the Debates of the Senate of that day, if the senators so choose.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to.)
The Hon. the Speaker pro tempore: Honourable senators, under rule 4-7, Routine Proceedings can last a maximum of 30 minutes. We are at that point but there are a few colleagues who still wish to give notice.
Is there leave to continue Routine Proceedings so they can do so?
Hon. Senators: Agreed.
[Translation]
Social Affairs, Science and Technology
Notice of Motion to Authorize Committee to Extend Date of Final Report on Study of the Implementation and Success of a Federal Framework on Post-traumatic Stress Disorder
Hon. Chantal Petitclerc: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That, notwithstanding the order of the Senate adopted on Tuesday, December 1, 2020, the date for the final report of the Standing Senate Committee on Social Affairs, Science and Technology in relation to its study on the implementation and success of a federal framework on post‑traumatic stress disorder by the Government of Canada be extended from February 28, 2021 to October 28, 2021.
Notice of Motion to Authorize Committee to Study Government’s Response to the COVID-19 Pandemic
Hon. Chantal Petitclerc: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Standing Senate Committee on Social Affairs, Science and Technology be authorized to examine and report on the government’s response to the COVID-19 pandemic, including the impact of the pandemic on vulnerable groups and the scientific research on COVID-19;
That, in particular, the committee examine the specific effects of the pandemic on Indigenous peoples, racialized communities, and people with disabilities;
That the papers and evidence received and taken and the work accomplished by the committee on this subject during the First Session of the Forty-third Parliament be referred to the committee; and
That the committee submit its final report no later than June 18, 2021.
(1450)
[English]
National Security and Defence
Notice of Motion to Authorize Committee to Study National Security and Defence Policies, Practices, Circumstances and Capabilities
Hon. Gwen Boniface: Honourable senators, I give notice that, at the next sitting of the Senate, I will move:
That the Standing Senate Committee on National Security and Defence be authorized to examine and report on Canada’s national security and defence policies, practices, circumstances and capabilities; and
That the committee submit its final report no later than December 31, 2021.
QUESTION PERIOD
Health
COVID-19 Vaccine Rollout
Hon. Donald Neil Plett (Leader of the Opposition): My question is for the Leader of the Government in the Senate. Leader, on this past Saturday, almost 550,000 people in the United Kingdom received their first COVID-19 vaccination. On Saturday, the U.S. vaccinated over 2 million people: 1.3 million received their first dose and 720,000 received their second dose. Yesterday, Canada vaccinated just under 13,000 people.
Pfizer and Moderna cut Canada’s vaccine shipments this month. The government is taking vaccines from a program that was intended to help the poorest countries in the world. The domestic vaccine production the Prime Minister announced last week won’t be ready any time soon. This is a failure on top of a failure on top of a failure. How can we believe that all Canadians will be vaccinated by September when we are already so far behind?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. All Canadians are concerned and wait eagerly and with anxiety for the arrival of more vaccines and progress in our vaccination. To answer your question directly, Canadians can take comfort in the fact that the government’s position has been, and remains, that it is on track to meet that objective. Honourable senators will recall that the September date was predicated upon only two vaccines being approved. We know now that a number of other vaccines are in the latter stages of the approval process at Health Canada.
Indeed, there is no denying the fact that this has been a long, hard time, but I’m advised that the government remains convinced and committed that it is on target. I will use a sports analogy, but an apt one. We have to view this, despite the anxiety that delays no doubt produce, as a marathon, not as a sprint. We’re still relatively early in the year. The government is confident that it will meet its targets.
Senator Plett: The government may be confident, and I, too, would like to be confident and trust the government’s timetables for vaccinations. But what I have seen so far makes it very difficult, if not impossible, to have any confidence.
Last week, the Trudeau government removed its Moderna delivery forecast for February 22 from Health Canada’s website. After the Prime Minister told Canadians 20 million doses of AstraZeneca’s vaccine would arrive by June, the public service corrected him and said they would arrive sometime between April and September. I’m sure you can understand why we all have a lack of confidence when the Prime Minister says one thing and the public service says another. The Prime Minister isn’t out there doing this.
Leader, how will your government meet its goal of vaccinating 3 million Canadians by the end of March when you cannot tell the provinces with certainty how many doses they will even get over the next couple of weeks?
Senator Gold: Thank you for the question. The disruptions to which you refer are unfortunate, but as the minister for procurement has stated on a number of occasions recently, they’re largely behind us. This government has been reassured by the companies producing those, as well as by their counterparts in the EU, that the companies are on track to deliver the promised numbers of doses. In addition, as I said, other vaccines are in the process of being reviewed, and we eagerly look forward to the results of those Health Canada approvals.
Hon. Yonah Martin (Deputy Leader of the Opposition): My question is also related to vaccines. I share this waning confidence in the government’s ability to manage all sorts of things, including the vaccine rollout.
It came as a surprise last week when the Trudeau government announced that it would be receiving millions of doses of the AstraZeneca vaccine through COVAX. This is a global vaccine-sharing program primarily designed to help low- and middle-income countries receive an equitable share of COVID-19 vaccines. To date, Canada is the only G7 country to access vaccines through COVAX.
Leader, this vaccine does not yet have approval in Canada. Why did your government choose to receive the AstraZeneca vaccine through COVAX instead of through your government’s contracts with the company itself? Is it because the deal your government negotiated directly with AstraZeneca does not have as favourable a term for Canada as the COVAX deal?
Senator Gold: The short answer to your last question is no. It is important for honourable senators and Canadians to understand more than what has been regularly reported about COVAX. It is an important program to help developing countries have access when they don’t have the ability, as Canada does, to afford to sign agreements with a large number of pharmaceutical companies, as Canada has done, including the ones you referred to.
Canada, behind the United Kingdom, was the second-largest contributor to COVAX. It contributed a significant amount of money, and proportionately more than others. The agreement under which Canada financed COVAX has two aspects: It allowed COVAX the buying power to procure large sums of vaccines for the benefit of developing countries who would not otherwise have access to that; but it also clearly provided that contributing countries, proportionate to their contributions, also had the ability to acquire a certain number of vaccines through the COVAX process.
The advance market commitment process, which benefits all countries — if my numbers are accurate — can provide for 2 billion doses of COVAX for the world. Canada will be receiving 1.9 million doses under the terms of the arrangement that flowed directly from its enhanced contribution to the program itself.
Senator Martin: I’m not sure if I understand your explanation in that we are the only G7 country to do so. It would be interesting to see the contributions of other countries compared to Canada given the fact that they’re not doing this.
Leader, Oxfam and Doctors Without Borders are among the groups that have criticized your government’s decision to obtain vaccines from COVAX at this time. Yesterday, the South African government announced that it would suspend use of the AstraZeneca vaccine due to data that suggests it’s not as effective against a variant that is dominant in that country. Leader, has your government contacted South Africa and AstraZeneca about this, considering that cases of the South African variant have been found in Canada? Does your contract with AstraZeneca cover the booster shots for the variant which it aims to have ready for this fall?
Senator Gold: With regard to your last question, I will have to make inquiries and respond.
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As I tried to explain, senator — I’ll try to be more clear — Canada was the second-largest contributor to COVAX. It’s precisely because of that enhanced contribution that Canada has access to a certain number and a small percentage of the doses that COVAX will otherwise be making available.
The Government of Canada has a responsibility to its citizens to protect them as best it can. It’s discharging that in an effective and transparent manner. When it no longer knows when a delivery is coming because of developments outside of its control, it tells the provinces so. That is a measure of transparency, as difficult though it sometimes is to receive the news.
With regard to the rest of your question, the Government of Canada is in regular contact with its counterparts in the international community. As the science is evolving, as the virus is evolving, it underscores the wisdom of the government’s policy in hedging its bets with seven different vaccines and seven different companies, all of which are seeking to find adjustments to the viruses as the science reveals their efficacy to the mutations that are unfortunately spreading.
Crown-Indigenous Relations
Indian Act
Hon. Marilou McPhedran: Senator Gold, you will recall that in January 2019, the UN Human Rights Committee ruled that the Indian Act discriminates against Indigenous women in Canada, joining other expert international bodies in confirming a shameful truth; that First Nations women have lived with discrimination for more than 150 years.
Well over three years ago, senators came together in this chamber to craft amendments to Bill S-3, which were eventually accepted so that the promise was made, in law, to eliminate the sex-based inequities in section 6 of the Indian Act. Some of those amendments came into force on December 12, 2017, and some — the final group — finally came into force on August 15, 2019.
It’s indisputable that denial of status is a rights violation that has dire social, financial and cultural implications for First Nations women, their families and our country. There are, by this government’s own estimates, between 270,000 to 450,000 First Nations women, and their descendants, newly entitled to status by these amendments. But since 2017, only 10,800 have been registered. Some of these women are old and/or ill. Registration delayed is registration denied. As long as these Indigenous women are not registered, the discrimination continues unabated.
My question, then, to you, honourable colleague, is why is progress in keeping the promise of full equality for First Nations women and their descendants so slow? Why is the implementation of this promise nowhere to be found in any mandate letter of any minister? Isn’t it true that no government minister being assigned the responsibility of implementing the Bill S-3 rights of Indigenous women means that —
The Hon. the Speaker pro tempore: Do you have a question?
Senator McPhedran: — means that this government has decided that Indigenous women are not truly a priority?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. The short answer, honourable colleague, to your last question is no, far from that. The government is committed to eliminating all sex-based discrimination in the Indian Act registration. As a result, as you know, of the bill coming into force, all known sex-based inequities in the registration provision of the Indian Act have been eliminated.
I’ve been advised that the government is progressively on‑boarding additional resources to the dedicated Bill S-3 Winnipeg processing unit, with new funding to ensure timely processing of applications. Let me give you some more examples of this.
For over a year now, consultations were held and have been held with Indigenous partners about how best to bring these new provisions into force. The government has invested $17.5 million in new funding, beginning in 2018-19, to support the processing of Bill S-3 related registration applications, and is now moving forward with an implementation plan that monitors registration mobility rates, supports communities and individuals throughout this process and will inform future investments.
The Hon. the Speaker pro tempore: Senator McPhedran, do you have a supplementary?
Senator McPhedran: I do. Senator Gold, may I ask that we, as a chamber, receive back from you some specific updates from the government when we actually reach more reasonable numbers than the measly number of 10,800 so far achieved?
Senator Gold: Colleague, I’ll be happy to update this chamber as information comes to me.
Finance
Canada Emergency Subsidy Calculation
Hon. Tony Loffreda: Honourable senators, my question is for Senator Gold, the Government Representative in the Senate. I would like to address an issue that has come to my attention regarding the emergency wage and rent subsidies, and the mechanism used to calculate the year-over-year drop in revenue for businesses to be eligible for the subsidies.
As I understand it, a business can choose one of two options to calculate its revenue drop and establish its baseline revenue to receive the emergency subsidy.
First, a business can compare the revenue earned with the corresponding month in the previous year. Alternatively, a business can opt to compare revenue earned with average revenue for January and February 2020. As far as I know, a business cannot change the calculation method it selected when first applying for the subsidy. This, of course, could leave thousands of businesses in a very precarious situation as of next month, if they are forced to compare their revenue drop to March 2020, when the pandemic hit, because at that time, obviously, their revenues were very low.
Senator Gold, can you reassure Canadian businesses that the government is aware of this situation and that it is currently looking into amending the formula so businesses are not negatively affected by this situation next month? A simple solution would be to allow businesses to switch options or introduce a new option allowing them to compare monthly revenues based on 2019 results instead of 2020.
Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for the question. This is an important area of concern. I will certainly bring this issue to the attention of the minister responsible, make the appropriate inquiries, provide a detailed response and ensure it’s tabled in this chamber in a timely fashion.
[Translation]
The Hon. the Speaker pro tempore: Senator Loffreda, do you have a supplementary question?
[English]
Senator Loffreda: Yes, just a quick follow-up on that. I hope it is done in a timely fashion, like Senator Gold has suggested, because many businesspeople across the country have reached out to me and are concerned with this issue. It would be significant if we can do it quickly and reassure Canadian businesses that the support is still there in a timely fashion and when most needed. This pandemic has lasted way longer than everybody thought it would last. Hopefully we will get through it quickly, but let’s keep supporting our businesses while we’re at it.
Thank you for the response and thank you for a timely follow-up on this.
Senator Gold: You’re welcome.
[Translation]
Office of the Governor General
Terms and Conditions of Departure of Secretary
Hon. Jean-Guy Dagenais: Honourable senators, my question is for the Leader of the Government in the Senate. Many people have spoken out against the fact that the Governor General, who resigned following the release of a scathing report against her, will receive a lifetime pension from the government. I am one of them.
However, my question is about the Governor General’s secretary, Assunta Di Lorenzo, whom Ms. Payette forced the government to hire to the detriment of public servants who would normally fill that position. Like her boss, Ms. Di Lorenzo also resigned, since she too was targeted in the report on the work environment at Rideau Hall.
Leader, I know that sometimes your government seems to specialize in covering up the terms and conditions of departure for senior officials, as in the case of Vice-Admiral Norman, for example. I would like you to tell us what the terms and conditions of retirement were for Ms. Di Lorenzo, who, for reasons I am unsure of, was described by The Globe and Mail as being the Governor General’s “sidekick.”
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Hon. Marc Gold (Government Representative in the Senate): Thank you for the question, Senator. However, I cannot divulge the details of Ms. Di Lorenzo’s resignation.
Senator Dagenais: I understand your position and your response, leader, but do you not find this bizarre?
When Vice-Admiral Norman left, there was some sort of confidential arrangement. In fact, we are never able to ascertain the cost of these departures. Now it is Ms. Di Lorenzo’s turn to leave without the cost being disclosed. Let’s not forget one thing: All these departures are at taxpayers’ expense. Don’t you think that Canadians should know what they paid for?
Senator Gold: Esteemed colleague, I understand your concern, but I reiterate that anything relating to the Governor General and her entourage, whether in government or in a private capacity, is most often confidential.
[English]
Health
COVID-19 Vaccine Rollout
Hon. Jim Munson: My question is for Senator Gold, and deals with COVID and dealing with persons with disabilities. We know that they are at high risk and it seems they are a low priority for vaccines.
The Ottawa Citizen last week published an article about Canadians calling on the government to ramp up federal efforts to vaccinate vulnerable persons for COVID-19. I recognize that the vaccinations are delivered by the provinces, but the federal government has a unique role to play.
The Health Care Access Research and Developmental Disabilities group powered by CAMH released a report last week emphasizing the need to prioritize vaccines in the developmental disability community. A UK report says people in that community are four to six times more likely to die from COVID than other individuals, and there are many more statistics.
Senator Gold, this is an important issue. Is the government working today with the provinces to prioritize vaccinations for those Canadians?
Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for your question and your ongoing commitment to the important issues that you raise.
I think all Canadians, myself included, were deeply affected by the story to which you refer. The government is in regular contact and working in close collaboration with the provinces. But as you correctly pointed out, the provinces have the responsibility to prioritize within their own jurisdiction, and there are differences one to the other.
I don’t know, frankly, the extent to which this issue is being discussed actively at the table. I will make inquiries and certainly respond back. The issue that you raise is an important one, and I certainly will bring it to the attention of the relevant minister.
Senator Munson: Senator, COVID-19 has no borders. You keep talking about provincial jurisdictions and different mandates and dealing with this. In your own province, there are two families I would like to talk about, just very briefly. Rissa Mechaly cares for her 40-year-old son; he has Down syndrome. Evelyn Lusthaus cares for her 43-year-old daughter; she has Down syndrome. They are scared and they are living alone.
I looked at a couple of statistics here. In the provincial priority of vaccinations, not only in the province of Quebec — and this is from the Montreal Gazette — in Quebec, people with Down syndrome are still in a category that’s eighth in line out of 10 categories to get the vaccine. They are grouped with all adults under the age of 60 with a pre-existing medical condition, behind healthy people aged 60 to 69. They are only ahead of non-health care essential service workers and the rest of the general population.
Senator Gold, one in five Canadians has a disability in this country, intellectual or physical. Do you know if the National Advisory Committee on Immunization — NACI — which is in the federal jurisdiction, is ensuring persons with intellectual disabilities will be prioritized for COVID vaccinations?
Senator Gold: Again, thank you for your question. I will make inquiries with respect to your specific question. But again, the advice that the National Advisory Committee gives is advisory, and again in our federation, health care is exclusively provincial. But thank you again for raising the question.
COVID-19 Pandemic—Travel Restrictions
Hon. Salma Ataullahjan: My question is for the government leader in the Senate.
Senator Gold, on January 26, the government discouraged non‑essential travel and released broad travel restriction measures. Almost two weeks later, Canadians are still waiting for clarity around these new measures. Canadians need to know when the hotel quarantine rule will go into effect and details on the $2,000 cost.
Senator Gold, when will the government commit to clearing their ambiguous travel restriction plans?
Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. The government made the announcement to advise Canadians as soon as it made the decision that this was the policy direction it needed to go so that Canadians would have as much advance notice as possible and make their plans accordingly. I’m advised that the details are being worked out and there will be announcements when they’ve been finalized.
Senator Ataullahjan: Senator Gold, given that the government will not apply these new travel restrictions to travellers crossing into Canada by land, and given that our U.S. neighbours have the highest number of COVID-19 cases in the world, what plans does the government have to protect Canadians from travellers crossing at the borders?
Senator Gold: Thank you for your question. The government has put into place serious measures to protect Canadians from those coming in. The measures vary, as you correctly pointed out, for those travelling by land and by air. But in all cases, visitors to Canada are required to quarantine. They are being given the information and they are being supervised in that regard.
In that sense, senator, the government is satisfied that the measures that it’s taking to protect our borders are effective and consistent, at least in the case of our neighbours to the south, with ensuring that essential supply lines and essential travel remain unimpeded.
Foreign Affairs
Funding for United Nations Relief and Works Agency
Hon. Linda Frum: My question is for the Leader of the Government in the Senate.
Senator Gold, as you are aware, educational materials recently distributed to Palestinian children by the United Nations Relief and Works Agency, or UNRWA, encouraged children to defend the motherland with blood, portrayed child-murdering terrorists as heroes and called Israel the enemy. This is from a supposedly neutral UN agency.
Recently, your government showered UNRWA with $90 million of Canadian taxpayer money, money that Global Affairs Canada assured us would be subject to rigorous monitoring. Senator Gold, what kind of rigorous monitoring measures were put in place for this funding? Why did that monitoring fail to detect the nature of these terror-glorifying materials which were distributed to thousands of Palestinian children?
Hon. Marc Gold (Government Representative in the Senate): Thank you for your question. I will certainly make inquiries as to the specific measures to which you refer and be glad to report back to the chamber.
Senator Frum: Senator Gold, on January 22, Minister Gould vowed that there would be an investigation into the production of these hateful UNRWA materials. She also said your government takes the situation extremely seriously. Senator Gold, how long will it take for Minister Gould to share the results of her promised investigation? Why, if your government does believe this is a serious breach of contract and of the principle of neutrality, has your government not suspended all funding of UNRWA pending the outcome of the investigation?
Senator Gold: Again, thank you for your question. I’m not in a position to answer it until I make the appropriate inquiries. Then I will be glad to report back to the chamber.
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Health
COVID-19 Vaccine Contracts
Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, countries around the world have made public their contracts to produce COVID-19 vaccines, but not Canada. Just to give you a few examples, leader, Canadians can go online and read for themselves India’s agreement with Novavax, the deals the United States has reached with Moderna and AstraZeneca, and Brazil’s agreement with AstraZeneca. Yet the Trudeau government claims that its contracts cannot be released to the Canadian public, not even to provincial premiers.
Leader, is it right that Canadian taxpayers can read the deals these companies have reached with other countries and not with their own government? Will the terms of these contracts be released?
Hon. Marc Gold (Government Representative in the Senate): The government is committed to transparency, but the fierce global competition for vaccines has led this government to conclude that providing certain information and specific contracts could jeopardize Canada’s supply chains and is not in our national interest.
[Translation]
ORDERS OF THE DAY
Criminal Code
Bill to Amend—Third Reading—Debate
Hon. Chantal Petitclerc moved third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
She said: Honourable senators, it is a privilege for me to rise at third reading stage in support of Bill C-7, an act to amend the Criminal Code (medical assistance in dying).
[English]
As we begin third reading of Bill C-7, I would first like to recognize the work that we have done to date to study this legislation. During the pre-study by the Standing Senate Committee on Legal and Constitutional Affairs, we had an entire week of full-day meetings. We debated during three sitting days at second reading, and we held another round of committee meetings over three full days last week. In total, we have heard from 130 witnesses.
My gratitude goes to the chair of Legal and Constitutional Affairs Committee, Senator Jaffer, and to all members for their professionalism and commitment to give this bill the time and attention it deserves. Here we are now at third reading, which I have no doubt will include more thoughtful debate. I am proud of our collective work on this important piece of legislation, which raises hard and complicated issues.
Colleagues, I want to thank you and the witnesses that we heard for the questions asked and for the expertise shared. This thorough process has given me much to think about and took my reflection to a deeper, more comprehensive level. This is what sober second thought is really about; when you listen, challenge your own beliefs and let the critical process do its work. It is not always comfortable, but it is always worth it. I can say that I supported Bill C-7 at first reading, and I support it now with even greater conviction.
Bill C-7 is coming to us as a response to the quest of persons like Mr. Truchon and Ms. Gladu, and to allow Canadians a greater measure of autonomy in choosing the time and manner of their death when their suffering is intolerable, even if they are not approaching death.
In expressing his support for this fundamental aspect of Bill C-7, Jason LeBlanc, a caregiver and researcher who appeared at the Legal Committee, said:
What Bill C-7 does provide, and singularly so, is a way for more Canadians caught in intolerable and irremediable suffering to have access to a medically assisted death.
Professor Jocelyn Downie also expressed support for the removal of “reasonably foreseeable death” as an eligibility criterion.
The bill also reconciles this increase in autonomy with the equally important goals of affirming the equal and inherent value of all lives, regardless of illness or disability, and of protecting persons who may find themselves in situations of vulnerability. That can be any one of us at different times, but vulnerability is more prominent for those who need support and services than for the privileged few. We have a responsibility toward each other to ensure that Canadians are protected from premature death when they are in situations of vulnerability and when their quality of life could be improved.
Mr. Geoffrey Kelley, a former member of the National Assembly of Quebec, called Bill C-7 a “careful approach” that:
. . . attempts to strike a balance between the right claimed by some people to control their destiny and the necessary protection of vulnerable people and people living with a disability.
He also noted that “The search for this balance will always be a work in progress.” I agree.
[Translation]
I’m sure that there is more than one way to reconcile these objectives in a way that suits everyone. We all have personal values and experiences that influence the way we look at this bill and interpret the meaning of autonomy and vulnerability.
[English]
We cannot ignore the inequalities that exist in our communities and the challenges in accessing services and supports, which can contribute to suffering. Under a regime where MAID is not limited to those who are dying, this reality poses a difficult dilemma of whether to prohibit MAID until all resources and all supports are available, or to permit MAID in order to respect the autonomy of those who choose it freely as a release from intolerable suffering, with appropriate safeguards. Bill C-7 adopts the latter approach, which is, in my view, the right one.
[Translation]
I want to share a quote from Sylvain Le May, who has been living with spinal muscular atrophy for 50 years. He testified at the Legal and Constitutional Affairs Committee on February 3 and said the following:
I am advocating for expanded access to medical assistance in dying, since it is an individual decision. The question often raised by many participants, groups and associations is about the context in which the decision to seek medical assistance in dying is made. This is a question that needs to be asked, but within a broader context than this bill. . . . Furthermore, setting up a conflict between two rights, in this case the right to live with dignity and the right to die with dignity, amounts to favouring one right over the other. But all rights are equal.
Bill C-7 amends the Criminal Code and is simply designed to allow for a safe, expanded medical assistance in dying regime. I am not trying to brush aside the difficult issues associated with access to support and proper care. My goal is to remind everyone that, right now, we are studying a MAID bill specifically from the criminal law perspective.
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[English]
While this bill is not the vehicle to guarantee that every Canadian has access to the care and supports they need to thrive, we can — and must — continue to push for real change when it comes to resources for persons living with disabilities, for our aging Canadians and for the vulnerable among us more generally. At the same time, I think we have to trust that the practitioners involved in MAID assessments are sensitive and have the competence to assess these realities. I firmly believe that we can protect and take care of each other without standing in the way of those who want to make the choice of MAID.
Changing our MAID regime from an end-of-life regime to one that is based on relieving suffering associated with a medical condition is a significant change, and we all recognize this. It seems very reasonable to me that this change in MAID eligibility has to be accompanied by minimum requirements to make sure no one receives MAID because they were unaware of an available treatment or support that could have improved their quality of life.
I listened intently during committee hearings and second reading, and I know that some of you are concerned about the safeguards proposed in the bill. Some think the new set of safeguards is too restrictive, some think they are insufficient and others are of the view that there shouldn’t be a two-track system of safeguards.
Witnesses also had diverse views on the safeguards. Mike Villeneuve, from the Canadian Nurses Association, told us that medical professionals in his association are of the view that the strict safeguards for cases where natural death is not foreseeable are “adequate and sufficient,” and he was supportive of Bill C-7’s approach.
The College of Family Physicians of Canada told us they were “generally supportive of recommended amendments,” including the need for a period of time to elapse before MAID is provided in cases where death is not foreseeable, and that the 90-day assessment period was a “reasonable . . . starting point.” And that is precisely what these safeguards for circumstances outside end of life are: a starting point, or minimum requirements.
Of course, in some cases, assessment of eligibility might take longer and a consultation with more experts might be advisable. We must trust our health care providers’ judgment and professionalism in assessing eligibility for MAID within clear safeguards that set out applicable minimum standards for all cases. The seriousness of ending a human life that was not otherwise coming to an end demands no less.
I also want to address where the proposal in Bill C-7 would stand compared to other countries’ regimes, as I know that is of concern for some of my colleagues. It is true that, within the proposed safeguards of Bill C-7, MAID would not be a measure of “last resort,” as it is in Belgium or the Netherlands, where the practitioner has to believe there are no reasonable prospects of improvement. To respect patient autonomy, the safeguards in Bill C-7 would require only that the person has seriously considered alternative means of relieving their suffering. But it is also the case that our regime includes the eligibility criterion requiring an advanced state of irreversible decline in capability. This criterion is absent from other regimes that do not limit MAID to end-of-life circumstances. In this way, Canada’s MAID regime would be narrower.
The bill’s proposal to allow the waiving of “final consent” responds to the specific circumstances in cases like those of Audrey Parker, and is responsive to the feedback provided during the MAID consultation in January of 2020. Practitioners indicated they were relatively comfortable providing MAID to a person who no longer has capacity in the narrow circumstances where their MAID request had been assessed and approved.
The bill’s proposal in this regard continues to safeguard the autonomy of the person who has lost decision-making capacity by clearly stating that a practitioner cannot provide MAID on the basis of an advance consent agreement if the person demonstrates refusal or resistance through words, sounds or gestures. Practitioners will exercise their clinical judgment in determining if the patient is expressing refusal or is merely exhibiting a reflex, but this is well within their expertise. For increased clarity on this point, the bill includes a “for greater certainty” clause, which confirms that the advance consent is still valid if the gesture was an involuntary response. This approach safeguards the autonomy of the person as they are in that moment.
The last issue I want to touch upon in my remarks is the exclusion of mental illness. Some witnesses who appeared at committee argued that this exclusion is necessary at this time. Dr. Gaind, a psychiatrist and past president of the Canadian Psychiatric Association, told us in clear terms that:
. . . there are significant differences with mental disorders that warrant treating them differently for MAID. Failing to do so would be discriminatory.
He reminded us that the Centre for Addiction and Mental Health:
. . . specifically said that at any point in time it may appear that an individual is not responding to any interventions, that their illness is currently irremediable, but it is not possible to determine with any certainty the course of this individual’s illness.
A representative of the Canadian Association for Suicide Prevention also told us that the association “strongly endorses” the exclusion of mental illness as a sole condition and that the provision is “absolutely essential to guard against premature deaths of people who are suffering from a mental illness . . . .” But we also heard strong testimony opposing the exclusion of mental illness.
[Translation]
I know this is a concern for many of you. I recommend that we all be prudent and listen to the experts who have told us that there are risks when the MAID request is based on a mental illness whose course is unpredictable. We all heard the Minister of Justice pledge to give the matter further consideration. Let’s not rush to authorize a measure that could put some Canadians in danger. Before we make such major changes to the MAID regime, let’s be sure we can do it safely.
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[English]
Honourable colleagues, I have no doubt that we will debate worthwhile questions, complexities and possible amendments at third reading. I look forward to all of us working together to improve Bill C-7 and see it adopted in a timely manner. Thank you very much.
Some Hon. Senators: Hear, hear.
[Translation]
Hon. Claude Carignan: Honourable colleagues, we are coming to the end of our study of this bill, which will have major implications for many of our fellow citizens. Through this legislative instrument, we will be determining how people make decisions about the end of their lives.
Honourable senators, we have an important responsibility when it comes to the passing of Bill C-7 on medical assistance in dying. We had the same responsibility with the passage of Bill C-14, the first bill to amend the Criminal Code that was passed in response to the Carter decision.
At the time, the Senate had clearly pointed out that the bill was unconstitutional because of the reasonably foreseeable death criterion that must be met to qualify for MAID. We even amended the bill to remove the criterion that made Bill C-14 unconstitutional. You all know what happened next. The government rejected the amendment, and the Senate decided not to insist on it.
As many people had predicted, the legislation was immediately challenged in court. Canadians with severe disabilities who were enduring persistent suffering but whose death was not reasonably foreseeable felt they were being deprived of their constitutional rights, including the right to life, liberty and security of the person.
I am saddened to see that people who have already been dealt a terrible blow by life had to fight before the courts, with all the energy and money that requires, to have their rights recognized, because the Senate failed to play its role in protecting minorities and verifying the constitutionality of a bill.
This bit of background emphasizes the importance of our role as a chamber of sober second thought and as an institution that protects minorities and monitors the constitutionality of laws.
The Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-7 and heard from many witnesses.
Of the 145 witnesses who appeared before the committee, only 2% did not raise issues with Bill C-7, and they were the three ministers.
As I mentioned earlier, we have a huge responsibility when it comes to Bill C-7, but we will also have the daunting task of fixing this bill to make it fairer, more humane and, above all, constitutionally valid.
Let’s look at the issues related to Bill C-7 that were raised by witnesses and senators.
As I said in my speech of December 14, 2020, the witnesses criticized nearly every measure proposed in the bill. The witnesses the committee heard from last week did the same.
First, there’s the criminal law aspect.
It’s important to be clear about what we’re doing here. We’re studying a bill that would amend the Criminal Code. We absolutely have to keep sight of that, and it’s worth taking a good long look at what is criminal and what isn’t. From that perspective, the longer we make the list of safeguards, the more likely we are to interfere in matters under the jurisdiction of the provinces and professional associations.
A lawyer named Andrew Roman commented on that during the committee hearings.
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Mr. Roman is a litigation lawyer who has over 40 years of experience in human rights, constitutional, environmental and energy issues, and has appeared at all levels of court, including the Supreme Court of Canada, and in every province of Canada. He said:
What you’re dealing with now is a criminal law — that’s the law in front of you — and that’s the real problem, because criminal law is a very blunt instrument; it’s a sledgehammer. And what you deal with when you deal with MAID is a one-on-one decision between a patient and a physician, in a different setting, where the criminal law doesn’t really operate.
What you need to do is to take into account what the Supreme Court of Canada said at the end of the Carter decision, in paragraph 132:
What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. . . .
[Translation]
Patrick Taillon, an associate professor in the Faculty of Law at Université Laval, told us the following:
. . . as we decriminalize medical assistance in dying, we must accept that in our federation, the role of the federal Parliament will progressively decline. The provinces have jurisdiction over health care, private law and professional ethics. This file is no different than other files Canada has had to deal with in its history, including the lengthy saga of prohibition, the abortion issue, and the decriminalization of cannabis. We could name countless examples where, as a morally sensitive issue is decriminalized, the legislative space occupied by the provinces, as well as by regulations like the ones governing professional orders in this case, expands accordingly.
Federal intervention must not stifle what I call the dialogue between our institutions by imposing an overly detailed uniform standard, which would end up stifling the provinces’ ability to strike a balance between rights, freedom of choice, and safeguards.
I also think that the federal Parliament must avoid an overly detailed solution that would result in the courts ruling too quickly on matters that deserve a bit of time for reflection and experimentation, as well as trial and error.
Honourable senators, it is essential to keep all these considerations in mind. They must guide our study of Bill C-7 and the amendments we will propose.
The second point is whether the bill is constitutional. Like many others, I believe that Bill C-7 is unconstitutional for at least three reasons.
First, it perpetuates the criterion of reasonably foreseeable death by creating two categories of people who can opt for medical assistance in dying: those whose natural death is reasonably foreseeable and those whose natural death is not reasonably foreseeable.
It enacts specific and different conditions to be met for each category depending on whether or not the death is reasonably foreseeable.
One of these conditions, in the case of a person whose natural death is not reasonably foreseeable, is a 90-day period between the time when the physician begins the assessment for medical assistance in dying and the day on which the procedure could take place.
I find this condition to be ill-founded, cruel and also in violation of the Canadian Charter of Rights and Freedoms.
Finally, Bill C-7 denies the right to medical assistance in dying for persons who are only diagnosed with a mental illness.
For the purpose of medical assistance in dying, the bill specifically excludes persons suffering from a mental illness by stating in clause 1, and I quote:
(2.1) For the purposes of paragraph (2)(a), a mental illness is not considered to be an illness, disease or disability.
One of the big problems with Bill C-7 is that the concept of “mental illness” is not defined. A number of health stakeholders have pointed out that “mental illness” as a concept does not exist in the health care sector. Even Minister Lametti acknowledged this. He said, and I quote:
Indeed, the next step is to examine the definition itself. I want to point out that the bill currently excludes mental illness if it is the sole underlying medical condition. . . . For now, there is no definition, but it refers to illnesses that require psychiatric care. It is, therefore, insufficient. We will study everything properly.
Colleagues, I remind you that this bill seeks to amend the Criminal Code. This is no different from saying that fraud is prohibited in some cases without defining “in some cases.”
According to Dr. Mona Gupta, a psychiatrist, researcher and associate professor at the University of Montreal’s Department of Psychiatry and Addiction, the use of the term “mental illness” in Bill C-7 creates, and I quote, “real confusion.”
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To drive her point home, she drew our attention to the fact that the Minister of Justice, in his Charter statement, suggested that a mental illness is one that falls primarily within the domain of psychiatry. Dr. Gupta gave the example of addictions. Since addictions are generally treated by general practitioners or addiction specialists, she wondered whether that was enough to exclude them from the expression “mental illness” as defined in Bill C-7, since addictions aren’t necessarily treated by a psychiatrist. In other words, she said that the expression “mental illness” doesn’t seem to take into account the fact that there is overlap among various medical disciplines in the treatment of many mental illnesses. She added that the expression that is generally used in the field of psychiatry is “mental disorder,” not “mental illness.”
I’d like to draw the justice minister’s attention to another problem with the current wording of the bill when it comes to the exclusion of mental illness. Although the term isn’t defined in the bill, the technical documentation that we received from the government gives examples of mental illnesses that would not be included. Would it not have been clearer to set out directly in the bill what does and doesn’t constitute a mental illness? The document in question is entitled Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision, and this is what it says about the current legislative context:
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In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry . . . or specialties outside of medicine . . . .
[Translation]
In fact, several witnesses emphasized the vagueness, irrelevance and arbitrary nature of the expression “mental illness.”
One of the most criticized measures at the committee hearings was the exclusion of mental illness from the definition of health problems, as it appears in the bill. As I mentioned, this exclusion denies the right to medical assistance in dying to persons whose sole underlying medical condition is a mental illness. Many witnesses spoke out against this exclusion.
Before presenting the criticism of these witnesses, I note that the Minister of Justice justifies the exclusion of mental illness in this excerpt of his Charter statement in relation to Bill C-7, published on October 21, 2020. It reads:
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. . . it is based on the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness. First, evidence suggests that screening for decision-making capacity is particularly difficult, and subject to a high degree of error, in relation to persons who suffer from a mental illness serious enough to ground a request for MAID. Second, mental illness is generally less predictable than physical illness in terms of the course the illness will take over time.
[Translation]
The Minister of Justice used these same arguments in his speeches, including those of November 13, 2020, and February 1, 2021, which he made before the Standing Senate Committee on Legal and Constitutional Affairs. It is important to keep in mind the minister’s reasoning behind this need to exclude mental illness. These reasons stated by the government will be scrutinized in the event where it would have to justify before the court, under section 1 of the Charter, the exclusion of mental illness as the sole reason for applying for medical assistance in dying. During review in committee, we heard from doctors and researchers who said that, according to their scientific knowledge, excluding mental illness from the current version of the bill is not justified. These witnesses refute the minister’s statement, whereby this exclusion is justified for the reason outlined in his speech of February 26, 2020, namely that “the trajectory of a mental illness is more difficult to predict than that of most physical illnesses.”
The minister’s claim was plainly contradicted by Professor Jocelyn Downie of Dalhousie University’s Health Law Institute. As she told the Senate committee, “The mental illness exclusion is indefensible for multiple reasons.” She describes the bill’s wording on this exclusion as incoherent, given that it allows for MAID for a mental illness where there is a physical co‑morbidity. She also said the following:
It is clinically unintelligible. Clinicians do not draw sharp lines between mental and physical; that’s a distinction that flies in the face of modern neuroscience.
Similarly, Dr. Justine Dembo, a psychiatrist, shared an example of a person with a mental disorder who could be eligible for MAID if they also had diabetes or kidney disease. She used that example to illustrate how the wording of the mental illness exclusion is arbitrary. Dr. Dembo also said the following:
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The exclusion:
. . . also undermines the fact that some individuals with unbearable suffering due to a mental disorder can be unresponsive even to decades of high-quality evidence-based treatments.
[Translation]
The expert testimony that I quoted and the committee heard gives us a sense of what’s to come. The government will have a very hard time convincing a court, on the basis of sound evidence, that the mental illness exclusion is justified under section 1 of the Canadian Charter of Rights and Freedoms.
Here’s another problem: the concept of reasonably foreseeable death.
Regarding the reasonably foreseeable death criterion included in Bill C-7, the government removed it as an eligibility criterion for medical assistance in dying in order to comply with the Gladu and Truchon decisions. However, it was then introduced as a new criterion for determining which protocol will be followed by patients who meet all other criteria, depending on whether their natural death is reasonably foreseeable or not. As a result, someone whose death is imminent will no longer have to endure the 10-day waiting period imposed under Bill C-14, while other individuals, those whose natural death is foreseeable, will be able to access the procedure only after 90 days after a physician has begun assessing the MAID application. Thus, the reasonably foreseeable natural death criterion, which was struck down in Carter and found to be unconstitutional in Gladu and Truchon, is being reintroduced by the government in Bill C-7 and will affect the fundamental rights of Canadians, meaning that some will be more equal than others.
Let’s now consider the 90-day waiting period. One of the new safeguards introduced by Bill C-7 for persons whose natural death isn’t reasonably foreseeable is the 90-day period between the start of the assessment of the medical assistance in dying application and the date the procedure can be provided.
I see four problems with this time period. First, whether the person’s natural death is reasonably foreseeable is determined during the application assessment. At what point does the 90-day period start? At the start of the assessment or when the health professional determines that the person’s death isn’t reasonably foreseeable?
André Schutten, Director of Law and Public Policy for the Association for Reformed Political Action, stated that the start of the 90-day period is ambiguous. He recommended that this element of the bill be more specific.
The third problem is as follows. The government provided no explanation of the scientific basis for choosing this 90-day period. Why not a shorter period? Why not a longer one? We don’t know.
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Caroline Quesnel, counsel with the Criminal Law Policy Section of the Department of Justice Canada, had the following to say about this waiting period:
The 90-day waiting period was considered to be the minimum amount of time that would generally provide a basic safeguard in all cases. It is true that in some cases, the patient has had the illness or disability for several years and has a long-standing therapeutic relationship with the doctor.
Jean-Pierre Ménard, a lawyer representing the Barreau du Québec, said the following:
At that point, it’s a matter of political choice. The minister did do a little nitpicking. That’s a bad approach because it has no solid basis. There is a solid basis for some elements, but most, like the 90 days and mental illness, have no specific or practical scientific basis. These elements are just being thrown out there, and unfortunately, this bad approach is becoming entrenched. This approach should be reviewed and reconsolidated, and the focus should be on the rights recognized in the Carter and Truchon decisions, which have a solid basis. What the minister is proposing is completely new. We have no idea where the 90-day period comes from.
The fourth problem with the 90-day period is that, in my opinion, it is profoundly cruel and inhumane. A person who decides to proceed with medical assistance in dying has been suffering for many months or even years. When they couldn’t take it any more, they decided that they no longer wanted to live that way. This is not a decision those people made lightly, so why make them wait an extra 90 days, especially since there is no scientific basis for it?
In my opinion, the 90-day period directly violates section 12 of the Charter, which states that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Some witnesses who appeared before the Senate committee, such as Dr. Georges L’Espérance, President of the Association québécoise pour le droit de mourir dans la dignité, Grace Pastine, Litigation Director of the British Columbia Civil Liberties Association, and lawyer Jean-Pierre Ménard, all recommend that the 90-day waiting period be removed.
Mr. Ménard believes that applying the 90-day waiting period to people whose natural death is not reasonably foreseeable but not to people whose natural death is reasonably foreseeable would constitute a violation of people’s right to equality and could be challenged under section 15 of the Canadian Charter of Rights and Freedoms. He also indicated that this waiting period could violate section 7 of the Charter. Obviously, I agree with him.
Honourable senators, Bill C-7 essentially creates three classes of citizens. First, those with a mental illness who meet all the other MAID criteria. Second, those who meet the MAID criteria but whose death is not reasonably foreseeable. Third, those who meet the MAID criteria and whose natural death is reasonably foreseeable.
As such, how can anyone assert that Bill C-7 respects section 15 of the Canadian Charter of Rights and Freedoms, which states that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability?
To justify these restrictions, the government is essentially invoking its duty to protect the most vulnerable. Here is what Eric Adams, Vice Dean and Professor of Law at the University of Alberta’s Faculty of Law, told us about that:
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In effect, the argument is that to protect vulnerable persons susceptible to ending their lives prematurely, and in order to signal fully the dignity of lives of disabled persons, the possibility of choice must be denied to some categories of people.
Very similar arguments by the Government of Canada failed at the Supreme Court in Carter, and they did not persuade the judge in Truchon either. The most significant question a court will examine in trying to answer this challenge — that expanded access infringes the Constitution — will be whether MAID and its system of protections and safeguards adequately protect the truly vulnerable while allowing the dignity of choice to those who are not.
Answering that question, it seems to me, will turn not on the eloquence of the argument but on the evidence of medical experts. Everything that I have seen suggests that judges will place considerable weight on the constitutional value of liberty for individuals to make fundamental choices about their own lives.
[Translation]
I would remind the chamber that when Senator Joyal appeared before the committee, he indicated that Bill C-7 should also be considered unconstitutional. He reminded us of our duty to protect minorities and to ensure that the bill is consistent with the Constitution.
Esteemed colleagues, I urge you to study Bill C-7 very carefully. I would also argue that the witnesses I cited provided us with scientific and legal arguments that refute the arguments of the Minister of Justice, who contended that the measures related to the exclusion of mental illness and the 90-day waiting period proposed in Bill C-7 are constitutional and consistent with the Charter.
Honourable senators, thank you for your attention. I urge you to do your job and amend the bill to make it more humane and, more importantly, constitutional.
Hon. Senators: Hear, hear.
Hon. Marc Gold (Government Representative in the Senate): Honourable senators, I rise today as we begin our deliberations on Bill C-7. Since I already spoke at length at second reading, I will be very brief today. First, I would like to take a moment to thank our colleagues for their efforts, commitment and insight in their study of this very important bill.
The Standing Senate Committee on Legal and Constitutional Affairs did invaluable work in its pre-study of Bill C-7. During its recent hearings, the committee spent several hours listening to experts and other individuals, asking them questions and analyzing their testimony. The witnesses’ views on the issue, while often divergent, were always honest. All committee members deserve our full appreciation for their commitment and patience.
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Over the course of three days, Senator Jaffer and her team pulled together the witnesses and the schedules that allowed the input of as many groups and individuals as possible. Indeed, air traffic controllers would have been impressed with the logistical planning. On behalf of the government and this chamber, thank you to the chair, the deputy chairs, the committee staff and every member of the committee for seeing to it that Bill C-7 is now here for discussion and debate by all honourable colleagues.
Honourable senators, if there is one thing that we have seen in the course of our review, it is that Bill C-7 grapples with complex issues that engage our core beliefs as parliamentarians.
We have seen that the bill may go too far for some, including those who still do not accept that access to MAID is a right under the Charter. We have also seen that it may not go far enough for others, who ultimately would place even more emphasis on personal autonomy. To me, this discourse is simply a symptom and an example of Bill C-7’s reasonable nature, something that makes it worthy of our support.
Is the government moving the ball forward on this issue? Yes. Is the government moving too fast or too far? I say no. Rather, I submit to you that Bill C-7 strikes the right balance. The bottom line is that it is a reasonable, prudent proposal that achieves a complex balancing of rights. To my mind — and I say this not simply as the government’s representative — Bill C-7 is neither too hot nor too cold but has just the right temperature.
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I’m certainly not alone in this view. Indeed, because of its progressive yet prudent nature, Bill C-7 found the support of four political parties in the other place in a two-thirds majority vote representing Canadians from all three coasts — from coast to coast to coast, as one tends to say. You can be sure that there are many MPs who would have liked to see certain issues addressed in this bill that were not, and others who would have tackled the policy differently. But at the end of the day, two thirds of MPs from all parties agreed that Bill C-7 strikes a fine balance that is worthy of support.
But while we should remind ourselves that Bill C-7 comes to us with a strong democratic stamp of approval, the Senate has a responsibility to conduct sober second thought to review, scrutinize, debate and consider improvements. We have seen in the last Parliament that the government that I have the honour of representing respects and values the work of the Senate.
As I have said on numerous occasions on this particular bill, and indeed as ministers have said in committee, the Government of Canada will take very seriously and consider in good faith amendments that the Senate may choose to propose to the House of Commons that are designed to improve the law, that are consistent with the objectives of the bill and within the scope of the legislation. So in that spirit, I want to thank all colleagues in advance for the thought and time devoted to your upcoming remarks, and I look forward to your contributions. Thank you.
Some Hon. Senators: Hear, hear.
Hon. Donald Neil Plett (Leader of the Opposition): Thank you, Your Honour.
Honourable senators, I also rise today to speak to Bill C-7. As we commence what I hope will be a third reading debate filled with respect and compassion, I would like to say a few words about the process thus far.
To date, this bill has certainly received scrutiny. We had engaged, rigorous debate at second reading. We heard from 81 witnesses during our pre-study, as already said before my speech here of the committee work. The committee spent countless hours deliberating the contents of two pre-study reports. We then heard from an additional 52 witnesses during our committee study and made some observations as a committee.
While I am also proud of the work of the Senate on this significant issue, I fear that we are still left with more questions than answers. It is almost certain that there will be disagreement on major policy that we debate; however, Bill C-7 is on another scale, both in terms of the vast opposition and in terms of vital importance that we get this right.
I believe it will serve this chamber well to reflect on why we are here considering expansion of physician-induced death. For the record, I should explain why I personally do not believe the term “medical assistance in dying” or the word “MAID” are appropriate characterizations of what is being proposed in this bill.
First, I have never been a fan of watering down a word in order to diminish the gravity of its true meaning. But second, as was articulated by psychiatrist Mark Sinyor in committee, we are no longer talking about medical assistance in dying:
. . . as we are no longer assisting in a death process that is already occurring but are rather inducing death many years or decades before its natural occurrence as a means of coping with emotional suffering, which is, in essence, the definition of suicide. Here, we are really speaking about physician-assisted or, even more correctly, induced death.
Colleagues, how did we get to this point, where we are debating an overhaul of our entire regime a few short years after its enactment and before we have even undertaken a parliamentary review?
As has been said before, we are here because of a lower court decision made by one judge, in one province, and because the government chose not to defend its own legislation. As law Professors Sheehy, Grant and Kaiser stated in a recent piece, in which they reflect on the harmful impact that this bill will have on Canada’s disability community:
It is a cruel charade to pretend that a trial court decision by a single judge requires an emergency response by federal legislation.
They remind us that the government was eager to fight multiple rulings by the Canadian Human Rights Commission and even the United Nations regarding the findings of discrimination against Indigenous children and women. Yet, they instantly surrender to this lower court ruling and self-impose an untenable timeline for Parliament to enact this law.
We have been told by constitutional experts that if this law is struck down in Quebec and remains in place throughout the rest of Canada, it would lead to a more gradual and organic process, which would give us more time to examine if and when to expand this regime, and, more importantly, respect the fact that the Supreme Court of Canada is the final arbiter of constitutional rights in this country, not one judge in one province.
Colleagues, we need to ask ourselves: Do we know enough about how the current regime works to justify such an expansion? It is important to note that Bill C-14 explicitly mandated a very careful examination of our experience before moving forward. That was supposed to be in the form of a parliamentary review. And yet, no such review has begun.
Colleagues, we heard repeatedly that it is incumbent upon us to conduct a thorough review of the monitoring information and evaluation of the current legislation before moving forward to broaden this area of the law.
Dr. Jaro Kotalik recently published a study regarding the monitoring and reporting of the national MAID program. He contended that the program is not being monitored as required by law.
We also heard from Dr. Harvey Schipper, an expert on this regime, who marvelled at the idea that we would expand this regime without having adequate data to analyze. He concluded that we do not have enough information about whether we can sensibly remove a single safeguard. And, in fairness, he said we do not have enough to substantiate adding any safeguards either. He maintained that while we have only the most trivial data, we should be incredibly strict until we fully understand the matter.
Dr. Joel Zivot raised questions about the pharmacology of the procedure itself. He notes that there are similarities between the drugs used for assisted suicide in Canada and drugs used for lethal injections in the United States. After reviewing hundreds of autopsy reports, he noted that while lethal injections appeared to be peaceful to a witness, it proved to be anything but peaceful when taking a closer look. He noted that MAID includes the use of a drug that paralyzes the body, making it impossible to breathe or move, and that the use of paralytics in lethal injections has been abandoned by the United States because of this obvious cruelty.
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While some Canadian MAID providers and even some in this chamber have vehemently disputed the claims of Dr. Zivot, stating that the procedure is in fact peaceful, to Dr. Zivot’s point, we cannot know that without post-mortem analysis, and we are not aware of any post-mortem analysis done on any patient who has received MAID to date. Colleagues, it is clear that on this point too, we simply do not know enough.
Yet, in the absence of this information, the government has pre-emptively removed safeguards that they vehemently defended just a few short years ago, notably when these safeguards were not implicated in the Truchon decision. While I am sure there will be a rigorous debate on safeguards when we reach that point in this debate, I want to remind the chamber that we are talking about ending a life.
These safeguards are clearly put in place to protect the vulnerable, especially in cases when assessors cannot be 100% certain of a patient’s motivation, state of mind, possibility of coercion, level of support or any other factor that could have led to such a request. We are talking about a 10-day period to reflect on an expressed desire to end your life, the requirement of two independent witnesses and the need to provide final consent.
These are far from unreasonable, onerous suggestions when we are dealing with life and death. Even more unsettling is that, in this new proposed regime, we are broadening access to include those who are not approaching end of life, and there is no requirement to make physician-induced death a last-resort-only option.
When one considers the safeguards in place for some life-preserving medical procedures, it is only logical that the safeguards in place for physician-induced death are at least as stringent. Take, for example, a neurosurgical procedure available in Canada to reverse suicidality.
Dr. Trevor Hurwitz testified before our committee and told us about a limbic surgery he has performed on chronically depressed and suicidal patients for 22 years in British Columbia. He has an extraordinary 100% success rate in reversing suicidality. While he was not there to testify about safeguards, I found the comparison in pre-procedure requirements remarkable. I asked him about the safeguards and mechanisms in place for this surgery — notably, a life-saving surgery.
He told me the process is as follows: Two psychiatrists assess for the fact that the patient has treatment-resistant depression. The patient would be required to have undergone all available treatments, including two courses of ECT. The patient would have had to try all available antidepressants, and they would have undergone psychotherapy. After they have met two psychiatrists, they are sent to two additional independent psychiatrists to assess capacity, to ensure that the suffering is not unduly shaping their decision-making capacity. The patient then meets with their neurosurgeon. Then the clinic sends reports to their lawyer. The lawyer meets with the patient, at which point the whole committee gets together. When the committee decides so, the patient is then eligible for the procedure. Because the criteria are so stringent, they have only had 12 patients undergo the procedure in 22 years.
Dr. Hurwitz said:
When I see the safeguards currently in place [in Canada’s MAID regime], they don’t even come close to the safeguards that we have in place to do a procedure that would save a life and this is a safeguard that will take a life.
Given the lack of review and how little we know, the absence of safeguards in this proposal is alarming. However, what is more troubling is what we do know. We know that the Indigenous consultation has been grossly inadequate. In fact, there was no Métis or Inuit consultation at all. There was no consultation whatsoever with Indigenous Canadians living with a disability.
We heard in committee that there is a concern among Indigenous communities that the proposed amendments may cause further harm to Indigenous peoples, especially in communities facing suicide crises. Tyler White, chief executive officer of Siksika Health Services, said:
The expansion of MAID sends a contradictory message to our peoples that some individuals should receive suicide prevention, while others receive suicide assistance.
We also know that there is concern among some, that given the history of Indigenous Canadians with our health care system, including horrific forced sterilizations, some question whether Indigenous peoples are even safe under this expanded regime.
We had the honour of hearing from François Paulette, a respected elder and chair of Yellowknife Stanton Territorial Health Authority Elders’ Advisory Council. He ended his powerful testimony with these words:
I look at this Bill C-7 as not belonging to us. I know that Western people, the way they do business, is quite different, very different. I am asked now in the late stages to amend this act. I should have been asked right from the beginning. You should have had Indigenous people sitting down with government people and designing this legislation. So I think Indigenous people are going to be hurt if you don’t put the right, constructive and rational reasons why our people should get involved in medical suicides.
And what was Minister Lametti’s response when he was asked about the lack of Indigenous input? I quote, “. . . we did our best in the time that we had. . . .”
We heard from Indigenous physicians and nurses that explicit conscience protection is imperative, especially under this proposed expanded regime. We heard this from other conscientious objectors as well, and that there will be doctors leaving the country or the medical profession. In fact, I met with some of them. It is appalling that the government still tries to hide behind an ambiguous, unenforceable clause from Bill C-14 that practitioners have assured us provides them no such protection. The decisions taken by some of the provinces to compel physicians to be involved have exemplified that.
Honourable senators, we know that according to international experts on this issue, that Canada will be the most permissive regime in the world, predominantly because there will be no requirement to explore all treatment options first.
We also know that this bill is in contravention of the UN Convention on the Rights of Persons with Disabilities. Three UN experts recently wrote in a statement:
Under no circumstance should the law provide that it could be a well-reasoned decision for a person with a disabling condition who is not dying to terminate their life with the support of the state.
This comes after a scathing report from the previous UN Special Rapporteur on the Rights of Persons with Disabilities on Canada’s failure to meet its international obligations with respect to our treatment of the disability community.
The UN report, which condemns specifically what this bill proposes to do, echoes the concerns that we have heard for months now from the disability community. This, colleagues, gets to the crux of the issue. We will spend the next two weeks debating both minor and substantial amendments to this bill. I plan to participate in these deliberations. However, the major sweeping change that this bill represents, and the reason for its existence, is to offer physician-induced death to individuals who are not approaching the end of life.
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At second reading, I spoke at length about the testimony we had heard, during our pre-study, about the harmful and tragic message this sends to those living with a disability in Canada: in essence, that some lives are simply not worth living.
We have heard from Canadians who are struggling to get access to basic services and access to home care. They have been pleading with us. Rather than make any great strides to improve these services, this bill offers them death instead.
This has likely been the most common and overarching concern raised by witnesses over the course of our deliberations — that we are not offering most Canadians who qualify for assisted suicide a fair and honest choice between life and death, both in terms of supports for those living with disability or chronic illness and palliative care. In fact, by moving to broaden access to assisted suicide before we improve these systems, we are making it easier to die than to live.
The government keeps deflecting these concerns by talking about the amount of money they have spent in long-term care. On that point, we should be mindful of these figures from the Canadian Association for Long Term Care: The 2017 federal budget included a historic $6 billion over 10 years for home and community care. Long-term care was not included in this investment. The National Housing Strategy does not include long-term care. The Home Support Worker pilot for foreign caregivers does not include employment in long-term care.
The 2019 federal budget did not include investments in long-term care. The federal government flowed $343.2 billion in COVID-19-related spending in the first quarter of last year. Not one dollar was committed to supporting long-term care.
Last week, our committee heard from Jonathan Marchand , who testified from what he calls his “medical prison cell.” He insisted there cannot be death with dignity without life with dignity. Given his condition, he requires full-time home care, but instead he has been offered a choice between living in the hospital for the rest of his life or assisted suicide.
In his very powerful testimony, he told us.
My disability is not the cause of my suffering, but rather the lack of adequate support, accessibility, and the discrimination I endure every day. As a last resort, I occupy a space in a cage in front of the National Assembly in Quebec for five days and five nights to protest my incarceration and to implement community living solutions. Why is it so hard to be seen and heard when we want to live?
Suicide prevention is offered to people without disabilities, but I deserve assisted suicide? I’ve been told before: If you’re not satisfied with what you’re being offered, why not accept euthanasia? My life is worth living. I want to be free.
Colleagues, our unwillingness to see and hear the disability community when they have been asking for support — while we move at an alarming rate to offer them assisted suicide when we are under no obligation to do so — is frankly a national tragedy.
I encourage you to watch the testimonies of Heidi Janz, Jonathan Marchand, Gabrielle Peters, Sarah Jama, David Shannon and every disability advocate who took the time to appear before us. Please colleagues, take the time to listen to the community most directly impacted. They truly could not be clearer. As Krista Carr of Inclusion Canada said, “Bill C-7 is our worst nightmare.” Honourable senators, the experts have been clear: We know far too little about this issue to justify such a radical expansion, and yet what we do know is troubling.
With Bill C-7, the government is asking us to abandon our international human rights obligations, to fail our Indigenous leaders and communities, to expand assisted suicide to prison inmates before they have been given proper access to medical care, and to fail our doctors and nurse practitioners who want to preserve their moral integrity and professional judgment when providing care, and require that they refer their disabled patients for a physician-induced death, even when they believe there are treatment options available. Lastly colleagues, this bill asks us to abandon our disability community by offering them death before we have given them a chance at supported life.
While I will work hard to improve this legislation given the likelihood of it passing, without the reasonable foreseeability of death criterion in place I cannot in good conscience support this bill moving forward. Thank you, colleagues.
Hon. Lucie Moncion (The Hon. the Acting Speaker): Senator Plett, will you take a question?
Hon. Pierre J. Dalphond: Senator Plett, last night on television, Jonathan Marchand was interviewed and was celebrating the fact that the Quebec government will provide him an apartment, where he will be entirely supported 24 hours a day seven days a week. Does that change your assessment of this situation, or at least his situation? He is no longer going to be in the jail.
Senator Plett: A friend of mine used to say when something like that happened, “Amen and pass the hallelujahs around.” I can only say I am happy that Mr. Marchand is getting this treatment. However, he is far from the only disabled person who is not getting the treatment they should be getting, and we should first be seeking that. Once we have 100% of the disabled community taken care of, then certainly that part of my concern in the bill will be satisfied.
Hon. Yuen Pau Woo: Honourable senators, I would like to share with you a few reflections on Bill C-7. Allow me first to acknowledge the work of our Standing Senate Committee on Legal and Constitutional Affairs, led by Senator Mobina Jaffer. Our colleagues have worked very hard over the recent weeks to organize hearings, receive witnesses and prepare reports. They were ably supported by Senate clerks, analysts, translators, technicians, cleaners and more, all of whom delivered the hearings under the challenging circumstances of a public health pandemic. I want to also thank colleagues who have spoken ahead of me for the insights they offered, often with striking passion.
I expect there will be no less passion in our third reading debate, and there may also be times during my speech today when I, too, come across as rather “exercised.” My intention today, however, is to try and leave emotions to the side and present instead my most dispassionate analysis of the bill. To be specific, I want to share with you how I am thinking about the bill and the many amendments that will be offered in the days ahead. In that sense, my speech is less about debating the bill than it is about an approach to debating this bill. I thank you in advance for your indulgence.
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This bill is ostensibly about the government’s response to the Truchon decision in the Quebec Superior Court, which is, in turn, a new chapter in the evolving legal framework for medical assistance in dying. It is reasonable to argue that the government should have appealed the decision, but that is now water under the bridge. If I may torture the metaphor, Bill C-7 is the legislative raft that is floating downriver and we are all on it, looking for the best shore upon which to land.
Some of us, it would seem, have a desire to return to the bridge, which is seen as a place that can provide judicial clarity, and would like to row upstream to get that clarity. This sentiment is expressed in two ways: The first is to assert that the view of the Supreme Court on a particular issue in Bill C-7 is already known; the second is to seek a reference to the Supreme Court and to hold the bill, or parts of it, in abeyance.
The problem with this judicial reflex is not that the court does not have a say in the matter; indeed, on Bill C-7, it is a virtual certainty that the court will be asked to rule on the constitutionality of certain provisions in the bill, whatever the final shape of the bill. It is curious, however, that members of a legislative branch of government — the chamber of sober second thought, no less — would seek this solution rather than exercise what is properly within our duty and mandate, which is to assess the merits of the issues before us in order to come up with a piece of legislation that properly engages the Truchon decision and previous court rulings.
The proper place to develop policy is not the courts but Parliament. The Senate, in particular, with its sensitivity to minority rights, is well-placed to weigh the constitutional trade-offs that come with all difficult public policy issues, including MAID.
In the context of government legislation, the assertion that a given provision is unconstitutional should be the beginning of more robust legislative reflection rather than a signal to end debate on that provision. There are, of course, constitutional considerations in all bills, and we have to always be mindful of constitutional violations — indeed, we have to be vigilant against such violations. We also have to ensure that all bills respect constitutional values, even if there may be uncertainty about the constitutionality, as such.
The unconstitutionality argument that is used increasingly in this chamber has the effect of being a conversation-stopper; that is to say a way to end debate on the merits of a particular measure in a bill. It is, to me, a peculiar interpretation of the role of the Senate as a legislative body, which, after all, should be in the business of legislating. We are all familiar with the so-called “dialogic” relationship between the legislature and the courts, especially on the Charter of Rights and Freedoms. However one interprets the means of “dialogue,” it cannot mean that we simply turn to the courts for guidance each and every time we encounter an issue that engages the Charter. We need to play our part in the dialogue by articulating the non-legal considerations that go into any particular provision of a bill, rather than pretending to be Supreme Court justices and second-guessing their decisions. To quote Professor Kent Roach:
A constructive dialogue will occur if the courts focus on issues of principle that are liable to be neglected or finessed in the legislature and the legislature is candid about when it believes that such principles should be limited or denied in particular contexts.
That is precisely what should be happening in our debate on Bill C-7.
To be precise, let me focus briefly on one of the most controversial provisions of this bill, the exclusion of mental illness when it is the sole underlying condition. We will debate this issue starting tomorrow, so I will only touch upon the broad point about how I approach this issue.
Many colleagues feel strongly that mental illness as a sole underlying condition should not be excluded from MAID. It is fair to say that we have heard both sides of this argument during the Legal Committee hearings, and we will no doubt hear more from both sides when we begin our thematic debate tomorrow. This is the kind of exchange that the Senate should be having in its consideration of whether to include mental illness in the MAID regime, because it is how we can contribute to the dialogue with the courts on the constitutionality of excluding mental illness. If the case can be made, for example, that the medical profession does not yet have the tools to assess the MAID criteria for patients with mental illness as a sole underlying condition, then that is the information we should be communicating to the court as a factor in our decision to exclude mental illness in MAID.
Here, again, is Professor Eric Adams, a constitutional law expert:
The most significant question a court will examine in trying to answer this challenge, that expanded access infringes the Constitution, will be whether MAID and its system of protections and safeguards adequately protect the truly vulnerable while allowing the dignity of choice to those who are not.
Answering that question, it seems to me, will turn not on the eloquence of the argument but on the evidence of medical experts.
This same passage was quoted by Senator Carignan, but I want to focus on a different part of it, which is the phrase “not on the eloquence of the argument but on the evidence of the medical experts.” I agree with this approach, which is very different from arguing that the decision of the court is preordained, whether based on previous court decisions, one’s intuition of the Charter or an educated guess at the minds of the justices. Perhaps it is appropriate for students in a constitutional law class to come to a conclusion on how they think the court will decide, but legislators are not bystanders in the legislative process whose job it is to speculate on court rulings; our job is to legislate in a way that engages with court rulings on the Charter. It is not to ask the court to tell us what they think or, worse, to tell the court what we think they think.
That brings us to an underlying issue about Bill C-7 that troubles me and which I know troubles many of you as well. It is that we don’t know that much about the implementation of MAID since Bill C-14 was promulgated barely five years ago, and that we are making changes to this landmark legislation in the absence of a proper review of the experience to date. I think everyone in this chamber wishes that the mandated five-year parliamentary review of MAID had already taken place and that we had the benefit of its findings to inform our deliberations on Bill C-7.
Let’s make sure that the review does go ahead, that it is relevant and thorough — but that is an issue for another day.
The missed opportunity of a proper parliamentary review is something to regret, but it should not paralyze us. It would be wrong to say that we should defeat Bill C-7 or even stall it until the review is completed, because the Truchon decision requires the government to respond, and, as we all know, a response has been delayed a few times already, with the latest deadline set for February 26. It may be that we wish the government had come up with a different response to Truchon, but Bill C-7 is the response we have, and it passed the House of Commons with a comfortable majority. On the core issue of what Bill C-7 is responding to in Truchon — namely, death not reasonably foreseeable — it is difficult to make the case that the unelected upper house should reject the bill.
But Bill C-7 goes beyond the Truchon decision. Rather than limit its scope to the issue of natural death not being reasonably foreseeable, the bill includes other provisions that are not strictly germane to that decision, such as the relaxation of current safeguards for MAID, including the waiting period and the number of witnesses to a MAID request. The government is entirely in its right to add these measures to Bill C-7, but they were not compelled by the court decision to make those changes. It is a little puzzling because there is a general presumption among proponents of the bill that the five-year review should have taken place before something like Bill C-7 — or any adjustments to the MAID regime in general — was contemplated. One can argue that the government had no choice in the case of death not reasonably foreseeable, but surely they had the choice to hold off on removing existing safeguards until the parliamentary review was completed.
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The point here is not whether the removal of existing safeguards in Bill C-7 is justified. I am glad those issues are not strictly ones of Charter compliance because it obviates the conversation-stopper argument that I alluded to previously. We will have a thematic debate on safeguards in a few days, and I am looking forward to substantive arguments on the merits of removing those safeguards — or, indeed, adding new ones — based, I hope, on evidence rather than conjecture or legal assertions. We can make up our minds after listening to those arguments.
The problem, rather, is that the government, by adding what I see as optional issues to a bill that could have been narrowly about a response to Truchon, has, in effect, opened the door to revisiting all of Bill C-14. It has invited a re-litigation, if you will, of a number of issues that were debated in Bill C-14 in the absence of evidence from the mandated five-year review.
The impulse to re-litigate goes in both directions, from those who never did much like MAID to start with, and from those who felt that Bill C-14 did not go far enough in the first place. We will see evidence of both in the amendments to come in the days ahead.
My Cartesian brain would have preferred a simple decision rule for this bill that was based on whether or not it responded in a reasonable way to the Truchon decision, but the inclusion of non-Truchon issues has muddied the waters.
I remain open to persuasion, but in general, I do not believe we know enough about the impact and implementation of MAID since 2016 to make major changes to the regime, apart from those that the duly elected government has decided to take because of the necessity to respond to a court decision. In saying this, I am only articulating the intent and spirit of Bill C-14. I would lean in the direction of collecting more evidence on MAID — especially MAID for patients with mental illness — and err on the side of caution.
One final reflection on how we deal with complexity in this bill: Even if we set aside the constitutionality argument against the exclusion of mental illness as a sole underlying condition, making mental illness ineligible for MAID poses a number of regulatory challenges. The definition of mental illness is fluid, which means there will be an ambiguity in determining who qualifies for MAID and who does not, with attendant challenges for professional regulators, not to mention law enforcement.
I don’t take these concerns lightly, and perhaps there are ways of finessing the language in the bill to provide greater clarity. The simple and obvious solution is to, of course, not exclude mental illness even when it is a sole underlying condition, but that is only a solution if your prior belief is that there are no concerns around the ability of medical professionals to assess such patients for MAID criteria. If, however, you do have concerns about assessment competencies, the so-called simple and obvious solution is not a solution but rather an abdication.
Needless to say, the easiest safeguard to regulate is to have no safeguard whatsoever. Regulating medical practice — or, indeed, any professional practice — is never straightforward and often fraught with ambiguity. Just think about sexual touching in medical examinations. We are grateful to professional regulators who have to wrestle with these challenges every day and who seek to continually improve their practice. But our job as legislators is not to make the job of regulators as easy as possible. We would be misguided if we took a decision on a bill that was based more on the level of difficulty in regulation than on the evidence that supported the decision in the first place.
The issue of how to regulate a complicated exemption, such as mental illness as a sole underlying condition, exposes what I believe is the fundamental fissure in the Bill C-7 debate. It is that some have great confidence in the ability of MAID assessors to do their work with accuracy, skill and compassion, consistent with the current law — while others are not so sure. Mental illness is simply a more fraught example of that divide.
The reason for a five-year parliamentary review was presumably to help us bridge that divide based on evidence rather than anecdote. It seems reasonable to me that we should not rush to expand MAID before we have that evidence. I think the Supreme Court can also appreciate that reasoning, which is why I am not as sure as some colleagues are about how the justices will rule on the mental health exclusion.
Colleagues, the clinical practice of medicine operates within a legal framework, which allocates to the profession the obligation to understand health and disease and to provide guidance and treatment accordingly. The guiding principle is science-centred evidence. That evidence starts with clinical observation, continuing dialogue with biological science, and leading to testable evidence of whether the hypotheses are right. This approach has led to the extension of the lifespan by 20 years in Canada in the last century and greatly improved quality of life for Canadians.
But medical science is not perfect. It has, at times, fallen prey to societal pressures to skip the science — the observed evidence — in favour of conviction. The result has been disaster. A poignant example was extremely high-dose chemotherapy to prevent breast cancer recurrence in women at the highest risk levels. Driven by legal argument — in particular, the argument of autonomy — women were offered this treatment in the absence of trials. When the trials were finally done, those so treated were found to have done materially worse. They suffered more and died sooner.
The current pandemic offers further evidence of the consequences of setting the science aside for conviction.
There are no perfect answers to the MAID question. However, the evidence we have from palliative care, among others, is that with proper focus on relieving suffering, the demand for MAID is much diminished. What we don’t know, and what patients and clinicians need to know, is the result of our experience to date. That is the hard clinical data that cannot be willed by philosophic or legal argument.
Colleagues, I offer these reflections as much for my own ongoing deliberation on Bill C-7 as for your edification or your chagrin, as the case may be. I remain open-minded on many of the particularities of the bill and look forward to the thematic debates in the days ahead.
As everyone pretty much agrees, however this bill lands some part of it will end up in the Supreme Court. Let’s give the justices something to think about.
Senator Dalphond: Honourable senators, as we enter the last stage of our study of Bill C-7, alterations to Canada’s constitutionally required framework for medically assisted dying, I would like to address some of the context relevant to this debate, including the legal requirements and the expectations of Canadians.
But first I would like to pay tribute to the members of the Standing Senate Committee on Legal and Constitutional Affairs, who, since November 2020, held nine full days of hearings totalling 56 hours of testimony from 145 witnesses, and who have spent countless more hours reviewing more than 100 briefs. The committee heard from a wide variety of perspectives, including ministers, provincial and regulatory authorities, advocacy groups, people living with disabilities, academics, legal and medical practitioners and experts, Indigenous representatives and people with personal experience with MAID.
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I also want to acknowledge the hard work of my colleagues on the steering committee: our chair, Senator Jaffer, and Senator Batters and Senator Campbell. Unfortunately, Senator Campbell had to take a step back for health reasons in December, and I look forward to his return among us in good shape.
Through the entire process, we were assisted by devoted staff in our respective offices, by a highly efficient committee clerk, Mark Palmer, and by two exceptional analysts from the Library of Parliament, Julian Walker and Michaela Keenan-Pelletier. All of them performed public service beyond the call of duty, especially during the Christmas recess. I wish to thank them for their invaluable support, availability and contributions.
On process, I would also like to congratulate all Senate leaderships on the agreed-upon framework for our upcoming debate, building on the practices developed last Parliament around the first MAID bill and the cannabis legislation. I am pleased that this debate will be structured, including in the amendment process, and that our final vote will be scheduled. This approach will afford Canadians greater access to our work.
I now turn to Bill C-7. The background of this bill is quite simple. Further to the Quebec Superior Court decision in Truchon of September 2019, the Attorney General of Canada acknowledged that the reasonably foreseeable natural death requirement to access MAID was inconsistent with the Supreme Court’s ruling in Carter. Incidentally, that conclusion was reached by the Senate as early as 2016. It is regrettable that since then, access to MAID has been denied to many Canadians with enduring and intolerable suffering.
[Translation]
At the Legal Committee’s November 25, 2020, meeting, Jean-Pierre Ménard, a lawyer, said about the Quebec Superior Court ruling that it:
. . . sticks very closely to the Carter decision. [Justice Baudouin] says clearly that what the Carter decision said was itself very clear and that it also applied to Mr. Truchon and Ms. Gladu. She did not see any reason to stray from it or to rule otherwise. In Carter, the intolerable suffering of patients was the court’s decision criterion.
Once Bill C-7 passes and comes into force, an error made by the government and the House of Commons in 2016 will finally be corrected and all Canadians who are suffering and meet the eligibility criteria will be allowed to use their autonomy to choose, if they so desire, a peaceful death.
By correcting this error, Parliament isn’t just respecting a right that is constitutionally protected under the Charter of Rights and Freedoms, namely the right to make one’s own choices regarding end of life, including at a time that respects one’s right to dignity. We will also be respecting the will of Canadians. According to a Canadian poll recently conducted by Ipsos, 86% of respondents say they agree with the Carter decision; that percentage goes up to 89% in Quebec. What’s more, in response to a specific question on the primary purpose of Bill C-7, to remove the reasonably foreseeable death criterion, 71% of respondents indicated their support in favour of that initiative.
That said, removing this requirement cannot hide the fact that there are two different realities. There are individuals who are experiencing intolerable suffering and whose death is reasonably foreseeable, and then there are individuals who are experiencing intolerable and irremediable suffering but who may still live for several years.
The government cannot deny that these two realities exist, so it chose to adopt two sets of criteria to be eligible for medical assistance in dying. Some witnesses would have preferred just one set of safeguards and eligibility requirements that would apply to all applicants. Nevertheless, I believe that it is reasonable for the government to recognize these two realities, and this approach has the support of the vast majority of parties in the House of Commons and of members of Parliament. In the coming days, some senators will propose amendments to the safeguards for each of these situations. Some will say the safeguards don’t go far enough, while others will say they go too far.
I myself think that the bill strikes a balance between the autonomy and the protection of vulnerable people by adding strengthened safeguards for persons whose natural death is not reasonably foreseeable. Specifically, the practitioner is required to discuss with the patient all available services to relieve their suffering, including counselling services, mental health and disability support services, and community services.
[English]
Before the committee, Minister Lametti explained the purpose of the second track:
As part of the development of Bill C-7, the Minister of Health . . . and I met with organizations and individuals speaking on behalf of persons with disabilities at round table meetings, held across the country in January and February 2020.
One of these round tables was focused precisely on disability rights and mostly made up of national and regional disability rights organizations. This legislation reflects concerns raised at these consultations, with the inclusion of a two-track system with greater safeguards for those whose death is not reasonably foreseeable.
That being said, I acknowledge that we as a society still need to devote more resources to address the needs of people with disabilities, to provide access to palliative care in remote areas, to do more research on various illnesses and their treatments, as well as to have further research on social determinants of health. For example, we need to better understand the social factors in play when individuals make important decisions about their health and life, including about any kind of serious treatments or interventions. For example, what makes a person choose continuous palliative sedation or MAID?
But unless we revert to the old paternalistic views that have long guided medical practice, we have to be firm in protecting the right of patients to be fully informed and to decide independently what is best for them. The whole medical practice rests now on the concepts of informed consent and patient autonomy. The Canadian Charter of Rights and Freedoms protects that sphere of autonomy. Deficiencies in research data or gaps in health programs, services and structures in place are not a reason to deny or restrict the sphere of autonomy.
The very real concerns of insufficient funding, racism and bias in the health care system should not override the constitutional right of those with enduring and intolerable suffering to access MAID if that is what they truly want. Valid concerns about some other equally important rights cannot justify the negation of other rights; in other words, imperfections do not justify continued suffering.
[Translation]
Nicole Gladu made it clear that what she wanted was to be able to end her life at the time of her choosing:
. . . efficiently and without suffering, in the company of my wonderful friends and with a glass of pink champagne in one hand and a canape in the other, as I admire the view of the sun setting over the river from my living room window one last time.
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Let’s not deny Ms. Gladu and others in similar circumstances the possibility of ending their suffering as peacefully as possible in the company of their loved ones. Let’s not deny their friends and family the possibility of fully participating in the end of life of someone they care about and saying goodbye, as Marilyn Gretzky’s family was able to do.
[English]
In my view, Bill C-7 has struck a reasonable balance by removing the reasonably foreseeable death criterion and strengthening the applicable safeguards for the second track. This approach acknowledges diverse perspectives in the disability community and at no time does it encourage people with disabilities to choose MAID or endorse any such ideas. It is important to remember that access to MAID is based on informed consent by the requester and by nobody else.
That said, I agree with many senators that Bill C-7 could be improved by us. As you know, I have expressed serious concerns about the proposed exclusion of individuals with mental illness as a sole underlying condition. One of these concerns is about the lack of a definition of what is considered mental illness for the purpose of access to MAID. Tomorrow, I will have the honour to present an amendment to the bill to clarify that the exclusion regarding mental illness should not include neurocognitive disorders such as Alzheimer’s disease, Parkinson’s disease, Huntington’s disease and dementia. Otherwise, Bill C-7 would actually restrict access to MAID compared to the current regime, a result that would be a step backward, totally unacceptable and unconstitutional.
Another concern I have is about the exclusion of mental illness altogether. As pointed out by many psychiatrists and other medical practitioners, this amounts to a further stigmatization of those suffering from mental illness. Furthermore, as stated by many legal experts, this broad class exclusion is contrary to the individualized assessment approach advanced in Carter, Truchon and reiterated more recently by the Supreme Court of Canada in Ontario (Attorney General) v. G. However, I’m mindful that many witnesses said that the elaboration of the required guidelines and standards for patients with mental disorders will take some time.
In this context, the adoption of a sunset clause would be, in my opinion, a reasonable way to address the interim period required for the provinces and the medical profession to establish the appropriate guidelines and standards for responsible and uniform access to MAID where the sole cause of unbearable suffering is mental illness.
In conclusion, I look forward to the debate in the coming days as we work to achieve the best public policy for Canadians through our contribution of sober second thought. Meegwetch, thank you.
Hon. Denise Batters: Honourable senators, I rise to speak to the third reading of Bill C-7, the Trudeau government’s bill to expand assisted suicide. Bill C-7 marks a profound shift in Canada’s assisted suicide regime. Five years ago, Bill C-14 established a system of medical assistance in dying, or MAID, that would hasten the deaths of people already at or very near their deaths. Bill C-7 will now expand the criteria for access to include those for whom death is not reasonably foreseeable. Medical assistance in dying will no longer mean assisting a death that is already under way. Instead, it will mean the state terminating the life of a person who might otherwise have had years of life remaining. This expansion could unleash an ethical Pandora’s box, and I especially fear the devastating impact it will have on the lives of vulnerable Canadians.
It is regrettable that the Trudeau government has chosen this moment in time to push legislation that will expand assisted dying — in the midst of a pandemic, when anxiety, suicidality and substance abuse have increased, at the same time as services and treatment options have significantly decreased or even vanished. We are in a time when people are alone, isolated, economically disadvantaged, and this is the Trudeau government’s priority piece of legislation? It’s disgraceful.
Throughout the study of this bill, we have heard repeatedly what academics, professors and constitutional lawyers theorize about expanding assisted suicide, what it will mean in a courtroom or a lecture hall, or at the next professional conference. But what has been less prominent in this debate, honourable senators, are the voices of the people who have the most to lose from this legislation: people living with disabilities or struggling with mental illness; Indigenous peoples; Black and racialized Canadians; Canadians who are isolated or living in poverty. Honourable senators, those people who have been routinely pushed to the margins of our society are crying out to us for help. But they don’t want help to die; they want help to live.
One of our most important roles as senators is to represent the views of minorities in the democratic process. We are to give voice to the voiceless, so that no one is left behind. But with Bill C-7, the Trudeau government has left so many Canadians behind. Honourable senators, it is our duty, from our privileged position here in the Senate, to ensure that we actually listen to all the voices the federal government has ignored with this legislation. We heard from many of them during our Legal Committee studies on this bill.
We heard from people living with disabilities, like Jonathan Marchand. Jonathan has muscular dystrophy and lives in a long-term care facility in Quebec, an institution he likens to “a medical prison.” Last week, he told us:
. . . just like Jean Truchon, I’m forced to live here because there is no proper support to live in the community.
My disability is not the cause of my suffering, but rather the lack of adequate support, accessibility, and the discrimination I endure every day.
Suicide prevention is offered to people without disabilities, but I deserve assisted suicide? I’ve been told before: If you’re not satisfied with what you’re being offered, why not accept euthanasia? My life is worth living. I want to be free.
Studies have shown that recipients of MAID in Canada have a higher income and are substantially less likely to reside in an institution than the general population. Advocates of assisted suicide cite this as evidence that MAID isn’t being accessed by vulnerable populations. But Dr. Sonu Gaind told our committee that would likely change if MAID is expanded to include those for whom death is not reasonably foreseeable, and especially for those patients suffering from mental illness. He said:
[In] North America, where there is an equal gender balance and those seeking MAID tend to be better off, well-educated and also Caucasian, that is when MAID is for those who are dying; people who have lived well and want to die well. Evidence shows it is a different group who seek MAID for mental illness, with twice as many women as men in those situations seeking MAID, and patients suffering from unresolved psychosocial stressors.
Mental health advocate Mark Henick, who himself struggled with treatment-resistant depression, testified at our Legal Committee that he “absolutely would have” accessed assisted suicide had it been made available to him at his lowest point. He expressed his concern that MAID was not really an equal choice for someone suffering from severe mental illness, who often feel as if there are no other options. He told us:
The suffering was so grievous that I couldn’t see anything outside of it. The way mental illness works . . . is that it collapses around you and puts blinders on you so that even if there are other options, you can’t always see them.
Mark pleaded with our Legal Committee to retain the exclusion of sole mental illness in Bill C-7, saying:
I’m asking you, as a mental health advocate and as a person with lived experience of both serious mental illness and recovery, please don’t do this. Don’t abdicate your responsibility to better care for the most vulnerable among us under a false premise of freedom or a misapplication of what equity really means. Medical assistance in dying solely for a mental illness, assisted suicide by a sanitized name, will set the mental health recovery movement back by a generation.
The debate over Bill C-7 has seemingly coalesced around two polarizing world views — one of privilege and one of need. The debate over the choice of assisted suicide seems ludicrous from the perspective of someone living on the margins, unable to access other options for the treatment of intolerable suffering. From that viewpoint, it understandably seems to be a “luxury” to create a plan in advance to “die with dignity,” when most of one’s energy as a marginalized person is directed toward the struggle of just getting by. Author Nora Loreto recently wrote:
This perspective imagines that a dignified life is attainable in Canada for everyone, and that someone should have the right to decide when in their path along illness they want to die. But for everyone who can’t access that dignified life due to ableism, capitalism, colonialism and/or racism, the conversation is an insult.
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Bill C-7 leaves behind people living in poverty, like Gabrielle Peters. On the right to seek death on one’s own terms, she told our committee:
The phrase “on their own terms” is slightly foreign to me as a disabled poor person. I can’t even cross the street at 8,000 of the 27,000 corners in Canada’s third-largest city because they have not been ramped. I live in a unit that was assigned to me. On the day I moved in, the movers had to wait while the police, then the coroner, and then an ambulance used the elevator, because this is how people here move out.
Disability advocate and community organizer Sarah Jama argued that factors of class and poverty mean that not all choice is created equal in the face of the very final act of assisted suicide. Further, she suggested that by expanding access to MAID so that more upper-middle-class Canadians can choose to arrange a peaceful or beautiful death, a whole other group of people — those living with disabilities in poverty — are exposed to significant harm.
Across this country, disabled people are living with government-sanctioned poverty rates on social assistance and without properly funded medication or therapy. What does choice truly look like under these conditions? A choice for some that would extinguish the choice of others is unjust.
After Gabrielle Peters appeared at our committee, she mused about the irony on social media:
[T]he state causes suffering through its policies, refuses to enact policies that would end or mitigate the suffering and then kindly offers to pay to end it — and you — permanently.
Sarah Jama pointed out how the parliamentary discussion on expanding assisted suicide in Bill C-7 has been shaped by the lack of diverse voices at the table, particularly when it comes to socio-economic class.
I also think it’s quite obvious that there has been a lack of diversity around people’s income and class. A lot of the speakers that you’ve heard from, from Dying With Dignity, have been people of an upper-middle-class background and have lobbying support, support with networks, and family and friends to support pushing this bill. You’ve not done enough work to go talk with people who are living in poverty or to people who are living on social assistance. The two views are quite different in terms of what this means, in terms of the medical racism and medical ableism that these groups face.
Many Indigenous witnesses mentioned high-profile cases of racism in the health care system, including the horrendous racist treatment of Indigenous patient Joyce Echaquan and Brian Sinclair, an Indigenous man with disabilities who died in an emergency waiting room after being ignored for 34 hours. Several witnesses feared that opening the eligibility criteria for MAID to persons not at the end of life would mean an increased risk of coercion for Indigenous patients.
Neil Belanger, of the British Columbia Aboriginal Network on Disability expressed his view that:
Racism toward Indigenous people permeates through our health care system, and it would be dangerously naive to suggest that MAID would be exempt from this system failure and to suggest that Indigenous persons living with disabilities would be adequately protected without the end-of-life criteria under MAID.
The federal government’s Bill C-7 has left Indigenous peoples behind. Many Indigenous witnesses at our Legal Committee hearings commented on the Trudeau government’s lack of consultation with Indigenous peoples, particularly Inuit and Métis, on the issue of assisted dying. Dr. Carrie Bourassa reiterated the need for comprehensive consultations with Indigenous communities in a spirit of meaningful cooperation, stating:
. . . if we’re going to have this discussion, it has to be done in a very delicate manner. You can’t just pull together three or four elders and expect that to be engagement.
Tyler White of Siksika First Nation called the government’s consultation with Indigenous communities “grossly inadequate” and voiced his concern about the message expanded assisted suicide would send to his community’s young people:
We are . . . concerned about the impacts of Bill C-7 on our efforts to combat the youth suicide crisis in our communities. The expansion of MAID sends a contradictory message that some individuals should receive suicide assistance while others suicide prevention. Our consistent message to our youth has been that suicide is not the answer to the difficulties and challenges we face as a people. Bill C-7 will send a message in direct opposition to ours.
Committee witness Sarah Jama pointed out the absence of Black and racialized viewpoints during the debate on Bill C-7. She noted the dangerous ramifications of those missing voices, given a history of medical coercion in the past:
I think it’s quite obvious that there have only been a handful of Black and racialized people to speak both in Parliament and in front of the Senate on this issue.
It’s engrained in our history in Canada that disabled people and racialized people have been abused because our bodies are seen as different, and that connects race and our abilities. And to not centre that in this conversation, while we’re passing this bill around euthanasia, is dangerous. It’s opening a can of worms that I think will be a regrettable part of our history here in Canada.
Honourable senators, we have a duty to hear these voices of the voiceless in this debate. We cannot just listen to White, upper-class university professors and legal experts who have the luxury of studying and pondering the esoteric points and finer nuances of these issues from the comfort of a leather chair in their ivory tower offices. Because in the real world, Gabrielle Peters is in her tiny apartment and Jonathan Marchand is in his long-term care room, trying to figure out how to access care services with months-long waiting lists, services that will never come fast enough, if at all, to alleviate their suffering or isolation or pain.
Meanwhile, the next Brian Sinclair will die in the next emergency room, ignored by medical staff who have made assumptions about him because of his race, while the homeless woman with a disability down the hall who came in seeking treatment for her intolerable suffering is offered access to assisted suicide instead.
Some might find it so much easier to listen to a university professor or legal expert discuss in a very detached and theoretical way the nuances of human rights law, than to listen to Sarah Jama in tears, pleading with us to listen to the people this law will actually directly impact.
Senators, we need to take a step back and put our privileged point of view aside. The voices of those who have spoken so strongly against Bill C-7 cannot be so easily discounted, as some have tried to do on previous occasions, with, “Oh, they’re opposed because of their religion,” or, “Oh, they’re just fundamentally against the concept of assisted dying anyway.”
Many of these people who oppose this bill are not religious and many were not opposed to MAID or Bill C-14, but they view Bill C-7 as a bridge too far, as a direct threat to the inherent value of their lives and to their equality rights under the law. Many of these people are traditional progressive allies: persons with disabilities, racialized communities, Indigenous peoples, people living in poverty. These are the vulnerable people we, as senators, have a responsibility to protect here. I hope that you will.
Thank you.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise at third reading debate. I first want to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs; the clerk, Mark Palmer; the analysts, Julian Walker and Michaela Keenan-Pelletier; and steering committee members Senator Campbell, Senator Dalphond and Senator Batters.
[Translation]
Thank you so much for your work.
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I rise today to speak about Bill C-7 and the expansion it proposes to medical assistance in dying to include people who are suffering from illnesses that are not treatable but their end of life is not foreseeable.
MAID affects the most vulnerable, our most sick, but MAID is not a treatment option nor should it be treated as such. It is for people like Janet Hopkins who, in her letter to us, said:
All humans and animals have a primal urge to survive. What then brings a person to prefer death? Constant pain eats at your soul. It destroys. We start to question. Do I have to be doped just to exist? What is considered an acceptable amount of suffering? How much is enough to satisfy those who can’t or don’t want to understand? There is a limit to one’s endurance. It’s not that we want to die, it is that the pain has taken away the will to live. I am not the same person I was all my life. I am losing myself.
Honourable senators, Ms. Hopkins had so much more to say. Some of it is so sensitive that I cannot share it publicly with you, but committee members have read it. That is the kind of suffering we are speaking about.
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MAID is intended as a well-thought-out, meaningful choice for people who are suffering, and in 2016 it was incorporated into our legal system to allow for such autonomy.
As we discuss expanding MAID, there are many aspects of the bill that I am sure you have heard about. I know that most aspects of the bill have already been shared with you, but there is one aspect of the bill that we have not heard about, and that is the importance of collecting and analyzing data.
Honourable senators, let me be clear: Without data, we are blind. We are making decisions without complete data. How are legislators supposed to take informed decisions and ensure that correct, meaningful policies are put in place without any data? How are we to solve our problems and prevent them from festering without any appropriate information?
Let me give you an example. Without the data collection and analysis related to women’s issues in Canada — like the wage gap or violence against women, among other issues — would we have been able to carve the effective legislation that our great country now has? Would we have been able to advance the rights and equality of women? I assure you, we would not. Information is crucial for legislators and policy-makers.
Honourable senators, last November, at the time of the pre‑study, I asked Minister Lametti if a gender-based analysis was carried out for this bill. He stated, “A gender analysis was done, and I can share a summary of it with the committee.” I followed up, asking if a race-based analysis was carried out. The minister responded, “My understanding . . . is that it was part of the gender-based analysis, and we can share that as well.”
Minister Lametti is the first minister ever to have shared gender-based analysis plus with the committee, and I thank him for that. He lived up to his promise, and in January the committee received the gender-based analysis plus. While I truly commend Minister Lametti for the gender-based analysis done for Bill C-7, I was saddened that the only sentence referring to race was an indirect quote under the demographics section, which reads, “The federal monitoring regime does not collect information about individuals’ income, education level, ethnicity and gender diversity.”
In our February hearings this year, as we studied the bill, I asked the minister why this was the case. The minister said:
The serious problem that we have across government, which has been illustrated in a number of different contexts, including this one, as well as our response to COVID-19, is the lack of disaggregated data. The challenge across government is to get better data, to have disaggregated data that allows us to answer the kinds of questions that you’re asking and to do the kinds of race-based analyses that . . .
— we were asking for.
Honourable senators, I know you know this, but 20% of our population is made up of people of colour. Almost a quarter of Canada’s population is racialized, yet the federal agency is not collecting data to help policy-makers take informed decisions about their future. We are going in blind on this bill to fight a battle for the lives of millions of people all over Canada.
During the committee hearings, I proceeded to ask witnesses from the Criminal Law Policy Section in the Department of Justice about race-based data collection, and they had almost the same answer, except they encouraged me to follow up with Health Canada about my concerns.
I went on to ask Ms. Abby Hoffman, Senior Executive Advisor to the Deputy Minister, Health Canada. I told her that I was very disheartened to see there was virtually nothing considered on race and the gender-based analysis plus document that I had received. My question to her was the following:
Given these regulatory powers belong to the health ministry, to your knowledge, is this disaggregated race-based data collected by the federal government?
Ms. Hoffman said:
. . . as far as the federal monitoring regime is concerned, we are not collecting race-based data or other information with respect to ethnicity.
She added:
We will be looking very clearly at how we can include information about ethnicity, not only in the monitoring regime itself but in our more general consideration of our societal and sociodemographic issues that influence both access to health care and access to MAID and consideration of eligibility for MAID.
I proceeded to ask Ms. Hoffman: “Is there any collection at all of data?” Ms. Hoffman replied:
If you’re talking about race-based data related to MAID specifically or even access to health services more generally at the federal level of a comprehensive nature, I would say the answer to that is no.
The answer is no, honourable senators. We do not collect data about a quarter of our population; that is millions of Canadians. Ms. Hoffman, however, said that through linked data sets at Statistics Canada, this information could be collected. But she added:
It’s possible, but there are issues of timing. We pride ourselves on the fact that we’re producing this MAID data and monitoring report as soon as we can after the period in question. If we waited to pursue linked data with Statistics Canada, another year or more would elapse before we could actually shed light on the issues you’re talking about.
Honourable senators, we learned from our witnesses. Dr. Timothy Holland, who is a MAID physician provider and assessor, said:
A MAID assessment is no trifle affair. In order to perform a MAID assessment, we must have full knowledge of the patient’s comprehensive medical status. We must perform a robust capacity assessment. We must ensure the patient fully understands all options available to them, so that we can be sure the patient is making a truly informed decision. And we must also understand who that patient is as a human being and understand the values that have guided their life. Only then can we truly assess if they meet the criteria for MAID and feel confident that this is truly the patient’s own decision, free of coercion.
Honourable senators, without data collection and analysis, we only have the anecdotal evidence we receive from the many racialized witnesses with lived experiences. I believe the time is right in our country to collect data affecting all Canadians. We need to do much better.
Honourable senators, we are studying this bill, and I wanted to bring to your attention the issue of non-data collection for almost a quarter of our population. Senators, I raise this issue with you. I could have raised many other issues. All I have done since December and January has been to live, eat, breathe and sleep Bill C-7. I raised this issue because I did not think anybody else would. We, in Canada, want harmony, and to achieve harmony in our country we have to be able to understand each other.
When I was little my mother — and some of you have heard me say this many times — used to ask me to play the piano. To annoy her, sometimes I played only the black keys, and sometimes I played only the white keys. Try it, senators. There is no harmony if you play only black keys or play only white keys.
To have real harmony in Canada, to really serve all Canadians — and we, as legislators, must look at the needs of all Canadians, not only a portion of them — we have to make sure we have data for all Canadians. We cannot today say that we didn’t have time to collect data for a quarter of the population. Honourable senators, I know you will all agree with me that that is not acceptable. Thank you very much.
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Hon. Mohamed-Iqbal Ravalia: Honourable senators, I rise today to speak to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
As we’ve heard through hours of compelling witness testimony in the Standing Senate Committee on Legal and Constitutional Affairs, and in the other place, this legislation raises incredibly complex and contentious issues. The concept of medical assistance in dying places two of our most sacred principles — the protection of life and the preservation of personal autonomy — in tension with each other. It demands a broad and interdisciplinary discussion involving social, legal, medical, moral and ethical concerns, and we’ve covered much of that ground in the past few weeks.
Honourable colleagues, legislation can often seem theoretical, distant and cold. However, Bill C-7, perhaps more so than most, involves real people and real families and agonizingly real choices made in a context that cannot possibly be understood by those who have not lived or experienced it. It is important to keep that front of mind and to approach this topic with the humility that it deserves.
There are multiple lenses with which to examine and assess this legislation. I will apply a clinical lens, one of lived experience as a rural family physician for over 35 years in my home province of Newfoundland and Labrador. The majority of my career was spent in Twillingate, a fishing community of 2,500 people, located in Notre Dame Bay, off the beautiful northeast coast of the island of Newfoundland. One of the greatest joys of living and practising medicine in this community was building meaningful relationships with my patients and my community. They were daughters, sons, parents, grandparents and friends. I knew their families and they knew mine. I had a comprehensive understanding of how their medical and social issues affected their lives. I understood the context of their concerns and their complex diagnoses and spent time discussing their prognosis. I was also a first-hand witness to the unique challenges faced by rural patients when it comes to accessing quality health services in a timely manner.
Honourable colleagues, one of the key objectives of this bill is ensuring that every individual can choose a peaceful death if they determine their situation is no longer tolerable to them, regardless of their proximity to death. That objective can only be achieved if there is equitable access to this service. The theoretical right to receive medical assistance in dying only exists for rural Canadians if they can practically access it. To that end, the bill before us contains a welcome amendment from the other place. In its original form, the bill mandated that in cases where a patient’s death was not reasonably foreseeable, the MAID provider or second medical or nurse practitioner involved in the assessment would also have had to be an expert in the condition that is causing the person’s suffering. To find a MAID provider who is also an expert would have likely been a significant barrier for individuals living in rural and remote communities.
While Canadians living in rural communities constitute one fifth of our population, they are served by only 8% of physicians practising in Canada. Only 14% of family doctors in Canada practice in rural and remote regions. To emphasize that inequity in an even more tangible manner, less than 3% of physician specialists work in rural and remote areas.
In the current version of the legislation, however, if neither the MAID provider nor the other medical or nurse practitioner have the required expertise, one of them must consult with a medical or nurse practitioner who does have that expertise and share the results of that consultation with the practitioner. This indeed helps mitigate the barriers for patients to have an assessment.
As Canada’s MAID regime matures and develops, I am confident that Parliament will amend and adapt the regime to introduce similar practical improvements.
As a physician from an incredibly tight-knit community, I’m well aware of the agonizing circumstances that might lead a patient to choose to access medical assistance in ending their life. While I have always vowed to first, do no harm, the harsh reality is that there are some circumstances where a patient is indeed in intolerable and irremediable pain and suffering despite all the measures being taken to mitigate this. In such difficult circumstances, accessing care to peacefully end the patient’s life — on the patient’s own terms — may be the least painful out of a range of agonizing choices. Affording dignity is a critical component on this chosen pathway. It is not a pathway that is coerced or canvassed or forced.
Our courts have ruled that Canadians must be able to access MAID. We must ensure that physicians and nurse practitioners have a practical and feasible pathway to ensure that they are fully able to address their patients’ suffering or intolerable pain, with medical assistance in dying being one — and let me emphasize that again: with medical assistance in dying being one — of a range of options.
Honourable colleagues, this is a debate that strikes at some of our deepest philosophical and ethical questions. It is a debate in which two of our highest and most sacred feelings — the protection of life and the preservation of our personal autonomy — can seem at times to be polarizing and at odds. It is a debate in which parties of equal good faith can disagree with each other in the strongest and most emotional terms possible, as we have witnessed in the incredible testimony.
To those who harbour fears of potential abuse of the vulnerable or disabled, this bill may never seem safe enough. On the other hand, it likely does not go far enough for those who have witnessed the ravages of dementia and neurodegenerative conditions and other conditions that could be ameliorated by advance consent for MAID. It is important, I think, for all of us to remember that this regime in Canada is less than five years old. There remain several outstanding concerns — including the state of palliative care in Canada, the exclusion of mental illness and mature minors with terminal illnesses. While research on MAID in Canada is in its infancy, I feel confident that, through further study and investigation, we will be able to better understand how to address these ongoing complex issues.
Honourable senators, this legislation is not all-encompassing. There is still a need to improve the availability, accessibility and delivery of crucial social services and supports in a manner in which they impact our day-to-day lives. Many of these gaps have been highlighted during the examination of this bill, and many more have both come to light and been aggravated by the current pandemic.
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My life’s work has included the difficult challenge of caring for people with irremediable pain and suffering. Their pain and suffering have forever been etched deep within my soul. Advocacy on their behalf, including the option of death with dignity when all other options have failed, has been the foundational cornerstone of my practice philosophy. Bill C-7, colleagues, I feel, is a step in the right direction to broaden the range of these individuals’ options.
Thank you. Meegwetch.
Hon. Pat Duncan: Honourable senators, I rise today, gratefully speaking to you from the traditional territory of the Kwanlin Dün First Nation in the Ta’an Kwäch’än Council. My remarks will speak to Bill C-7 at third reading.
I would like to express my thanks to honourable senators throughout the chamber, notably Senator Petitclerc, the bill’s sponsor; Senator Jaffer and her colleagues on the Standing Senate Committee on Legal and Constitutional Affairs; Senator Gold, the Government Representative; Senator Carignan, the bill’s critic; and Senator Cotter and Senator Dalphond, among others with a legal background and understanding of jurisprudence on this important matter. And to the physicians in our midst, thank you. Without your expertise, this debate would be less constructive. Thank you to everyone, especially the Senate staff in our offices and table officers who have provided us with their able assistance in preparing us and who will be guiding us in the coming days as we debate Bill C-7.
Honourable senators, I have prepared these remarks knowing that I am to deliver them in learned company that is more well versed than I am on the subject of medical assistance in dying and in its history in this chamber.
Having listened to and reviewed the debates, I realize there are far greater orators and clear-minded thinkers than myself. Nonetheless, I seek to address you since I arrived in this chamber the way most of the recent appointments have: Through an application process, believing that my background and understanding of the legislative and public administrative processes have qualified me to be here. I am also the only representative of the Yukon in this chamber, and thus I feel I have a responsibility to ensure that Yukoners’ voices are heard and that the Yukon experience is shared on this subject.
The view from the federal-provincial table has not, in my opinion, been fully explored in our discussions on Bill C-7, yet the provinces carry most of the responsibility for health care administration, including that fundamental role of paying the health care providers, including those who administer MAID and/or who provide palliative care.
In reviewing Bill C-7, I have read the debate offered by my colleagues and considered the discussions at the committee. Like many of you, I’ve heard from the disability community. I hear the fear and the concern in their voices, even though their words and voices may have come to me electronically. Canadians have written and emailed. You may not have received a personal response from me, but please know that you have been heard. I do appreciate and value what you have told me.
That there are Canadians with disabilities who are without homes, who do not have the funds to pay for pharmaceuticals that will better manage their disability on a daily basis and that there are Canadians with disabilities left out of Canada’s health and social safety nets — and often left out of community life — troubles me greatly.
I believe that all governments federal, provincial and territorial, as well as First Nations, senators, Councils of Elders, Canadians — we all have a responsibility to address this troubling reality. It is not addressed in Bill C-7.
Honourable senators, Bill C-7 expands the eligibility for medical assistance in dying to competent adults whose illness, disease or disability is in an advanced state of decline or capability. It’s important to note that medical assistance in dying is requested through an application-driven process. Others have mentioned this. I have also heard the testimony and the discussion in this chamber and elsewhere regarding those instances where MAID has been inappropriately offered to a person. I do not doubt that this has occurred, and I share the horror and sense of disbelief. How could any reasonable health care professional think that was appropriate or within the tenets of their oath? The fact that these comments have been made, that unnecessary deaths have occurred, is not an error in legislative drafting. We are amending this section following the interpretation of the courts. Granted, it’s advice that the Senate had previously given the other place, as eloquently shared by Senator Seidman. Whether the legislative drafters have it right this time, debate and time in this chamber will tell. So far, I am inclined to say they do.
I would be remiss in addressing the testimony and the stories shared by the disability community if I did not also reference the systemic racism that exists in the provision of health care in Canada. Senators have discussed the tragic death of Joyce Echaquan under deeply troubling circumstances. Even more troubling is that her story is not the only story. It is one of many, told and untold. As a country, we must address systemic racism wherever and whenever it occurs. However, addressing systemic racism in health care is not the substance of Bill C-7. Safeguards are present in Bill C-7, as has been ably presented by several senators.
Honourable senators, having acknowledged the concerns of the disability community and the fact that systemic racism exists, I am compelled to share with you a troubling trend I have witnessed and heard in debate. Several times, I have detected a deep mistrust and, might I say, a lack of faith in our medical community. I find this deeply troubling. Yes, I recognize that mistreatment and issues of deep concern exist. There are also areas of significant progress.
Just one example from my home community can be found in the Yukon Hospital Corporation’s First Nations Health Programs. At the outset, those who self-identify as First Nations, Métis or Inuit, either when registering or later, have services available to them that reflect First Nations culture and values, including traditional foods. This is just one example of what I hope are many programs throughout the country as we seek reconciliation.
Ultimately, senators, because they are regulated professionals, we generally trust health care providers to bring us, our children and our grandchildren into this world. Why would we not trust them to help us leave it?
There has also been a great deal of discussion about and education on the services of palliative care for Canadians and its intersection with the provision of MAID. Many times, I have heard and seen references to the lack of palliative care, and especially the lack of funding for palliative care, during the course of our debate on Bill C-7.
Thank you, Senator Mégie, for your presentation at committee and your speech in this chamber. Your thoughtful, learned presentation proved extraordinarily helpful to us and to the public who listened to us.
Senators, I worked in the administration of insured health services when the first contract with a physician to provide palliative care services in the Yukon was negotiated. The process started in 2006 and concluded in 2012. I also served as the Yukon’s Minister of Finance during the debates about health care funding of the early 2000s, a time when the Yukon had suffered exponentially from the cuts to the Canada Health and Social Transfer.
Health care and its provision, albeit within the Canada Health Act, are seen as a provincial responsibility. How provinces spend the federal health transfer dollars through the Canada Health and Social Transfer — whether providing palliative care services or not, whether privatizing or not, or extended care facilities — are issues outside the discussion of Bill C-7.
Even the observation that Canada should provide more funds — with the caveat that the funding attached must be spent in a particular area or in a particular way — are observations, as we all know, that are largely unenforceable.
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Honourable senators, we may hold that opinion and we may want to offer the recommendation that dollars be spent, that the Government of Canada could do a better job funding health care. We might also want to make the observation as to how that money is spent in our province or territory. Nonetheless, colleagues, we are not in the cabinet room — the provincial or territorial cabinet room — when those decisions are made, and we don’t answer to the voters for those decisions.
I’m not suggesting that the Senate not make these observations. I do agree that the lack of palliative care services, as just one example, is a national tragedy. And lack of access to palliative care is just one of the incredibly important matters mentioned during discussions of Bill C-7 that is outside of Bill C-7.
I do believe we should acknowledge and pursue these matters. However, I believe we should observe them and we should act upon them when we stand to gain a greater degree of success. For example, let us honour and build upon the work of colleagues, such as Senator Carstairs, and raise awareness and support for palliative care amongst Canadians so that when they hold those who ask for their vote — be it a member of Parliament or a member of a provincial or territorial legislature, federally or provincially — Canadians will ask, “What will you do, if you’re elected, to make palliative care services available to all Canadians?” and more importantly, for Canadians to hold them accountable when they do not live up to that commitment.
Honourable senators, seeking to address a standard of accountability as a senator representing my region and the diversity of people within it, and armed with the knowledge that legislation can only be as good as those who are tasked with upholding and administering it, I sought the wisdom of the palliative care doctors and the physician who administers MAID within Yukon. To those who noted today that we have not heard evidence from those first few years of Bill C-14, I offer the following:
I have been a family doctor in Yukon (urban and rural) for 40 years and more recently I have been focusing on cancer patients. As a result, I have been engaged with MAID since the first legislation was debated.
I feel grateful that our territory has had a smooth and collaborative time while starting MAID. There has been a close relationship with the palliative team, the Health Care community and the multicultural groups including the First Nations on whose land we live.
It is clear that our population wishes the right to make a choice around their end of life and the entire population has access to palliative care including MAID no matter how distant they are from Whitehorse.
Given our population, several people still do not realize the choices they have at end of life. Given our small population but huge rural land, we feel that the new legislation, which is strongly supported, would be best with two local physicians assessing the MAID patients and having the specialists more as help and guidance while filling the forms. We agree that only one person needs to witness the MAID request form rather than two, as privacy and lack of people in small towns can be an issue.
The author, I might add, was also recently awarded the Order of Yukon for her service to Yukoners.
I share this with you, colleagues, to show that MAID, as it was envisioned in Bill C-14, has worked in the Yukon. As it is drafted in Bill C-7, this bill, the physicians charged with its implementation have advised me that it will continue to work in the Yukon with and for all Yukoners. There are successful applications and interpretations of the legislation as it exists and as it is anticipated.
Thinking with an all-of-Canada perspective, both the Yukon physicians and I recognize that there are outstanding issues and concerns to be addressed in the legislation. Mental health is one of these. One size does not fit all in legislation, especially in Canada. Legislation can always be improved as circumstances and attitudes change and develop.
I look forward to our debate and the improvements that are suggested by my colleagues in the coming days and I thank you for this opportunity, for listening to these comments and this northern perspective as we enter our discussions.
Mahsi’cho, gùnáłchîsh. Thank you.
Hon. Senators: Hear, hear.
The Hon. the Speaker pro tempore: Honourable senators, pursuant to the order adopted earlier today, the sitting must now be suspended for an hour. The sitting will resume at 7:06.
(The sitting of the Senate was suspended.)
(The sitting of the Senate was resumed.)
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Criminal Code
Bill to Amend—Third Reading—Debate Adjourned
On the Order:
Resuming debate on the motion of the Honourable Senator Petitclerc, seconded by the Honourable Senator Gold, P.C., for the third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).
Hon. Pamela Wallin: Honourable senators, I believe it is our right to make end-of-life decisions for ourselves. It is our responsibility as legislators to sort out the complicated issues inherent around this whole question of medical assistance in dying.
I have come to my views over the years watching loved ones die. I have had many discussions with those who are facing the end of life and wrestling with those issues. And, of course, we have all participated in the debates on Bill C-14 and the committee hearings around Bill C-7.
There are painful journeys taken by Canadian families every day. Every single day, people with incurable or irreversible medical conditions suffer needlessly in hospital beds or care homes. Far too many are home alone, even though they have lost physical or intellectual function, but alone because families are miles or countries away, or funds are limited.
Without the possibility of advance request for MAID, we have seen Canadians with terminal illnesses ending their lives earlier than they would like, or worse, spending the last moments of their lives confused and fearful that they will lose consciousness on the morning of the procedure and be forced to live on without awareness or faculties, with a nagging anxiety that they have lost control over a life they really no longer know.
So many will likely spend the rest of their life and, certainly, their final days with strangers; people who, of course, were once their loved ones, or they will spend months or years anticipating the worst and go on to suffer alone in their unfamiliar worlds with those flashes of awareness that they are no longer who they once were.
They will lose dignity, their character, their personality and, of course, their choices. For any of us who have witnessed this slow descent into hell, it is genuinely uncivilized.
The Quebec Court stated that no one should prevent our right — according to the Canadian Charter of Rights and Freedoms — to make choices relating to our own “right to life, liberty and security of the person,” and a clear majority of Canadians agree; 86% agree that people with a serious degenerative or incurable disease should be able to request and obtain medical assistance in dying, and 74% said MAID should be accessible to all people with incurable diseases, even if their death is not imminent.
MAID legislation is about choices. It’s not about forcing anyone to die or treating it as some affordable option to deal with too many seniors or dangerous nursing homes. But the laws have created serious gaps in accessibility and they are not always administered fairly, consistently or in a timely manner. It is particularly difficult in rural communities like mine, often hours from a city hospital and with very limited access to doctors or lawyers.
I personally believe anyone should have the right to a legal advance request in a living will. No one who loses capacity unexpectedly should be forced to live the rest of their lives unconscious or in a hospital bed until their death. That is why we have do-not-resuscitate orders. I see an advance directive as exercising that very same right. Our well-stated, well-documented decisions about our own lives should be respected and upheld, even after losing our conscious ability to reaffirm that decision in the moment.
Some believe this is an oversimplified understanding of the issue, but I don’t agree. Many of us have lived it or are concerned for our own futures and are asking the what-ifs of aging.
I don’t want to fall a victim to the disease lottery. If my cancer returns, MAID would be possible. But if dementia or Alzheimer’s comes first, then there is no such promise.
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I’ve said this in earlier remarks that we remember the phrase “Do not go gentle into that good night.” We don’t want to go gentle into that good night; we want to live life to our fullest. But when we cannot live our life as conscious, aware and connected human beings, then please give me the choice, while I am still able, to choose a gentler way into that good night.
Thank you, colleagues, for the time.
Some Hon. Senators: Hear, hear.
(On motion of Senator Martin, debate adjourned.)
[Translation]
Judges Act
Criminal Code
Bill to Amend—Second Reading—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Dalphond, seconded by the Honourable Senator Galvez, for the second reading of Bill C-3, An Act to amend the Judges Act and the Criminal Code.
Hon. Pierre-Hugues Boisvenu: Honourable senators, I’m pleased to rise today as the critic for Bill C-3, An Act to amend the Judges Act and the Criminal Code. As we have heard already, Bill C-3 was introduced by the Minister of Justice, the Honourable David Lametti, on September 25, 2020, and has been studied by the House of Commons Standing Committee on Justice and Human Rights.
As a Conservative senator and member of the official opposition, I support this legislation, which is necessary to protect the rights of victims of sexual assault. When it comes to protecting the rights of victims of crime, there is no room for partisanship. Our mission is to improve the lives of Canadians, and I am confident that we will follow the lead of the members of the other place.
I would like to remind senators that this bill was first introduced by the former leader of the official opposition in the House of Commons, Rona Ambrose. Ms. Ambrose is a great person who cares about defending women’s rights and victims’ rights. I was pleased to have worked with her and to have had the opportunity to speak to her bill, which I think is important to make our justice system more responsive to the expectations and experiences of victims. I know that Ms. Ambrose is still working to support women’s rights. This bill is hers. I hope that this Parliament will move it forward so that it is quickly passed.
For many years, I have been seeing victims of crime lose confidence in our criminal justice system. Most of them feel as though the justice system doesn’t take into account the severity of the crime, often out of ignorance of the subject. Sexual assault is one of the most frequently committed crimes in Canada. According to Statistics Canada, in 2019 alone, there were 30,900 police-reported sexual assaults, or 82 incidents per 100,000 population. That is an increase of 7% compared to 2018. Since 2015, this type of crime has been steadily increasing in every province. These statistics show just how bad this troubling societal problem has become.
I believe that we need to seriously fix our approach and take stronger action against the perpetrators of these crimes, who have the highest rate of recidivism in Canada.
Sexual assault can take different forms and can be committed in any context and at any point in a woman’s or young man’s life. That is why it is important to ensure that future superior court judges have the appropriate tools to handle sexual assault cases and that they learn more about the subject. Bill C-3 will strengthen victims’ confidence in the judicial process.
In 2017, the #MeToo movement swept through the United States following revelations in the Weinstein affair. The movement took on global proportions, and countless women spoke out about their experience with assault. I think that movement was a telling symptom of the frustration felt by many women, who felt abandoned by the justice system and who chose public denunciation over legal action.
I would like to note that I am against public denunciation, regardless of the crime committed. I will always be a staunch defender of our justice system, imperfect though it may be. Public denunciation is not the solution and can lead to abuses that do nothing to help the victims. Nonetheless, in order for victims to have confidence that justice will be done, our justice system needs to be up to the task, and it needs to be able to listen to them to help them through the process.
That is why training more geared to the work of judges is a good strategy for making our justice system more responsive to the needs of sexual assault victims. Judges have questioned or rejected the complainant’s version based on sexual stereotypes in a number of criminal trials. In 2017, former justice Robin Camp made some outrageous remarks about a complainant during a trial. He questioned her testimony and made unsympathetic and inappropriate comments such as, and I quote, “Why couldn’t you just keep your knees together?” and “sex and pain sometimes go together.”
I can tell you that this kind of comment is common within the judiciary. I realize that most judges are conscientious professionals. However, this kind of comment is a problem and has no place in a court that, in 2017, was dealing with a matter as grave as sexual assault.
In 2019, the Quebec Court of Appeal overturned the acquittal of a man charged with repeated sexual assault of a young girl. The judge hearing the case doubted the young complainant’s version of events, discrediting her on the grounds that nobody had any idea what was happening. That is a perfect example of a judge’s ignorance in a sexual assault case. That young girl probably felt humiliated by our justice system, and I’m sure the experience only alienated her further from the Canadian justice system.
Decisions and reasons like those are not only harmful to the victims, but could also result in criminals being acquitted. For years now, experts in crime statistics have been pointing out that sex offenders are highly likely to reoffend. Despite the paucity of data on recidivism in Canada, I did find the Correctional Service of Canada’s comprehensive study of recidivism rates among Canadian federal offenders.
According to a 2019 document, the recidivism rate for sexual crimes is 30.9%, and for violent sexual crimes it is 17.7%. This data gives us an overview of recidivism, but it doesn’t include offenders who received sentences of less than two years or who were sentenced in municipal courts, and there were many.
We must remember that a small percentage of victims report their attackers. According to data published by Statistics Canada, 54% of women under 25 who were victims of sexual assault reported the crime to the police. Forty-one per cent of women 25 and older and 60% of young men who were victims of sexual assault did not report or delayed reporting the incident. Reasons provided by Statistics Canada include the feeling of shame or fear and a lack of confidence in the police and the criminal justice system.
It is therefore important that this bill be passed quickly. It amends the Judges Act to make participation in continuing education on matters related to sexual assault law an eligibility criterion for appointment to a superior court. Candidates will have to undertake to participate in continuing education before being called to the bench.
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Sexual assaults generally occur in a particular situation, often in secret, where abusers hold some power over their victims. Victims may take some time to realize that they are being or have been abused. For example, it may take children many years to truly understand what happened to them. It often takes years before children can talk about the abuse or find the strength to report it. The reporting process may require therapy and long-term support. You can imagine just how difficult it is for victims who decide to testify to describe what happened to them in court.
It’s important for us to ensure that victims get adequate support and don’t feel judged or stereotyped. I am working on the assumption that judges who are tasked with administering the law must be aware of the various aspects of the crime they are judging. Judicial candidates don’t end up hearing cases in their own specialties. As you know, there are many different areas of law, and no one can master them all.
That is why providing training to judges who may not be very familiar with this type of case would be a way of solving this problem. To develop these training courses, the bill requires the Canadian Judicial Council to consult sexual assault survivors and the organizations that support them in order to guarantee the content and relevance.
Because of the many consultations that I had with victims of crime, I can tell you that the best way to acquire expertise in the criminal field is to listen carefully to and consult with victims. I applaud this measure that seeks to refocus the attention on victims in the judicial process. By paying more attention to what victims are saying, we will be able to build a fairer, more effective justice system.
Let’s be clear. This bill isn’t an attack on judges and it doesn’t seek to blame them. I know how difficult it is to be a judge, particularly in criminal cases where the judge has the heavy responsibility of delivering justice, not making any mistakes, imposing a fair sentence and taking all of the evidence into consideration, all while remaining impartial.
Having attended sordid trials, often involving traumatizing events, I feel it’s important to recognize the exceptional work that the men and women of the Canadian judiciary do every day. This bill reflects respectful discussions between representatives of the judiciary and legislators, just as it incorporates amendments made to former MP Rona Ambrose’s Bill C-337.
This bill also provides that the Canadian Judicial Council should report to the Minister of Justice so that Parliament can be informed annually about the number of judges who have participated in these seminars and receive a report. It is therefore essential that the Minister of Justice and Parliament monitor this legislation closely so they can make any necessary changes if flaws in the implementation arise.
This is an urgent matter. We can’t waste more time and cause victims more suffering. Let’s prevent bad decisions from being made, let’s make sure victims don’t have to testify all over again because they were not heard as they should have been the first time around. Let’s avoid errors that end up being overturned on appeal, errors that undermine and discredit our justice system. Let’s be pragmatic and modernize our justice system.
As far as the Canadian Judicial Council’s fears about the independence of the courts are concerned, subsection 60(1) of the Judges Act is in perfect harmony with the CJC’s mission, which is, and I quote:
. . . to promote efficiency and uniformity, and to improve the quality of judicial service, in superior courts.
The CJC writes, and I quote:
In a constantly changing world, the CJC gives Canadians a judicial system based on modern practices, in keeping with the values of our society.
That’s actually the whole point of this bill, to improve and modernize the judicial system. Judges make decisions that have consequences on the lives of many. Each decision is made in the name of justice, which itself stems from the desire of human societies to live communally with rules of law characterized by social contract theory.
Judges have this power, conferred by the people, to make decisions based on justice and fairness. In order to render justice, judges have a duty to be aware of the reality on the ground, the specifics of the stories, and the suffering of the victims.
In order to move closer to that ideal, judges and legislators must work together more collaboratively without the spectre of dependence of the courts being raised. Judicial independence is guaranteed as foundational in our Constitution, and the Supreme Court is the ultimate arbiter in the event of any inconsistencies. Another important dimension of this bill is that it requires judges to give reasons for their decisions in sexual assault cases. For Canadians, this aspect of the bill is fundamental, because it will bring greater transparency in judicial decision-making. In my view, judges should more often justify their decisions. This could become a positive avenue for educating the public about the complexity of court decisions. A better-informed public would be more accepting of court decisions, which are often difficult to grasp.
Honourable senators, I would like to once again recognize all the work Ms. Ambrose did on the original Bill C-337 and thank her for her dedication to victims. By making victims once again the focus in the judicial process, she courageously tackled an issue that is so often subject to stereotypes. This bill is close to her heart, and as a former leader of the opposition, Ms. Ambrose was able to bring forward a bill based on victims and their needs. I hope it passes before the end of this Parliament.
Honourable colleagues, I would like to conclude with one final point that I believe is just as essential to better protect women and children in Canada. As you know, I would like to see a comprehensive reform of our justice system, and this bill is a first step in that direction. Many sexual assaults occur in the context of domestic violence. Domestic violence and sexual assault are among the crimes most committed in Canada. Spousal violence accounts for 30% of court cases. These two categories of crime alone account for over 50% of all the cases heard in our courthouses.
The common denominator in these two categories of crime is the low reporting rate by victims. The majority of victims are women, and both types of violence are also subject to prejudice and stereotypes. Often, because of a very poor understanding of the subject, some judges doubt the complainant’s version of events based on considerations outside the rule of law. Why wasn’t it reported? Why didn’t the victim leave her partner? Why did she stay with him for so long?
Family violence can take different forms, both physical and psychological. The courts must often address this issue without having the right tools. It would also be appropriate for judges to participate in training on family violence, which affects both adults and children. Murder and sexual assault are aspects of family violence. Outside this place, there are many victims and organizations that are ready to be consulted and that could design effective training for our judges.
According to Statistics Canada, intimate partner violence represents 30% of crime in Canada. Women represent 79% of victims, accounting for eight in ten victims. The Canadian Femicide Observatory for Justice and Accountability report indicates that 118 women died in 2019 and 51% of these deaths were the result of intimate partner violence. Honourable senators, 70% of victims of domestic violence do not report acts of violence out of fear of reprisal or because they fear for their physical integrity. Also according to Statistics Canada, 445 murders were solved in Canada in 2019. There were 135 murders involving family members, and 56 women were murdered by their spouse or former spouse.
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These statistics show that intimate partner violence is a very serious and widespread issue in Canada.
Every day, the courts deal with countless criminal cases associated with domestic violence. Furthermore, judges are often required to carefully navigate through all of the facts presented. The evidence often comes in the form of testimony that judges must use their own judgment to interpret. I think it is important to propose a bill or an amendment to this bill that would improve judicial training on this topic, which accounts for one-third of the crimes committed in Canada.
In conclusion, I want to stress that domestic violence and sexual assault are inextricably linked. Fifty-seven per cent of sexual assaults against women are committed in the context of domestic violence.
Honourable senators, there is no doubt that this bill transcends party lines and has the support of this Parliament. Bills C-337 and C-5 have already given us a path forward.
I therefore unreservedly support this bill and want it to be sent to the Standing Senate Committee on Legal and Constitutional Affairs for swift consideration. Thank you.
(On motion of Senator Pate, debate adjourned.)
[English]
Speech from the Throne
Motion for Address in Reply—Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Gagné, seconded by the Honourable Senator Petitclerc:
That the following Address be presented to Her Excellency the Governor General of Canada:
To Her Excellency the Right Honourable Julie Payette, Chancellor and Principal Companion of the Order of Canada, Chancellor and Commander of the Order of Military Merit, Chancellor and Commander of the Order of Merit of the Police Forces, Governor General and Commander-in-Chief of Canada.
MAY IT PLEASE YOUR EXCELLENCY:
We, Her Majesty’s most loyal and dutiful subjects, the Senate of Canada in Parliament assembled, beg leave to offer our humble thanks to Your Excellency for the gracious Speech which Your Excellency has addressed to both Houses of Parliament.
Hon. Tony Dean: Honourable senators, I’m responding this evening to Senator Sinclair’s renewal of his vision of the Senate as a council of elders. I want to thank Senator Sinclair for this.
Murray, you are going to be sorely missed in this chamber by all of us.
What started as a vision several years ago has come a long way, but we still have some distance to travel. In talking about a council of elders, Senator Sinclair spoke of a Senate of wise people who behave as such; a Senate that does not take sides but helps others to find the best path in the interests of all Canadians; a Senate that listens, discusses and advises others; a Senate that is more diverse; and a Senate with a more respectful culture that results in better public policy outcomes. Who could not agree with that vision?
Listening to Senator Sinclair’s concept of a council of elders in 2016 was a key factor that drew me here to the Senate. I wouldn’t have accepted an appointment to the former mostly partisan Senate, and I know I’m not alone in that. We’ve seen some dramatic changes here. That starts with the way in which senators are appointed and in the way in which we organize ourselves.
There is, of course, no government caucus in the traditional sense, and the large majority of us are independent of the political parties in the House of Commons, appointed on the basis of, “nothing promised, nothing owed.”
It strikes me as a paradox that my independent colleagues, who are now spread among three groups, are often the government’s fiercest and, in fact, most effective critics because they are much more likely to look at evidence, data, best available policies and the concept of public value — public benefits — as opposed to political partisanship.
We’ve seen no end of amendments to government bills coming from independent senators, indeed, many more than were seen before our arrival. These amendments often make an effort to bridge differences in viewpoints and move the process along in a positive way, as opposed to choosing sides and trying to score political points. We are, instead, colleagues, seeing the emergence of the characteristics of a council of elders. Colleagues, the less partisan we are the more objective we can be.
I also agree with Senator Sinclair and Senator Dalphond that a council of elders in a less partisan Senate has to address rules rooted in the former duopoly that was in place here for decades.
The former model reflected the Liberal and Conservative “take turns in power” duopoly in the Senate, which replicates far too closely the political workings of the elected House of Commons.
Making the shift to a less partisan and more effective Senate means dealing with endemic delays in our proceedings and the purposeful stalling of Senate business and, particularly, Senate public bills and private members’ bills on which senators deserve a vote within a reasonable time frame.
Colleagues, we are moving slowly but surely towards a different Senate, and it’s not before time. Research tells us that this is supported by the public, the people who are paying for all of this.
As Senator Sinclair said, at its best, the Senate is a body composed of respected individuals with wisdom and experience, exercising their powers with restraint and helping to guide our federation by listening, by discussing and weighing in on important national issues, finding the optimal path for Canada, just as you have been doing today. He told us that if this chamber strives to operate as a council of elders, it will develop a more respectful internal culture, as well as earning greater credibility with Canadians and members of Parliament. This enhanced credibility will help the Senate deliver better public policy, just as elders in Indigenous communities influence decision making.
Colleagues, the council of elders concept takes us beyond the political parroting of discussions in the House of Commons that we sometimes see in this place. In the old Senate, when a sitting Prime Minister was vilified in the way we see here from time to time, we would likely have seen a quick riposte based on the failings of a previous prime minister of another political stripe. I imagine that they would have had plenty of material to work with, but that doesn’t happen.
That’s because we’re moving beyond the old practice of so‑called political discourse, which is the term we have heard here in defending some of the extreme partisanship that we’ve seen on display.
Colleagues, there is now no duopoly partner for that sort of political discourse. There is no tit-for-tat game of who can best tarnish the other’s prime minister. Those days are behind us. The previous duopolistic notion of sharp Conservative-versus-Liberal political discourse has evaporated. Those who engage in it are doing so in an echo chamber; they are listening to themselves.
Independent senators are not here for partisan politics. I note that fully 80% of senators in this chamber are now independent of political caucuses in the House of Commons. I think that’s as it should be. In this respect, I applaud the leadership of Senators Tannas and Cordy who, together with Senators Woo and Saint-Germain, are demonstrating respectful organizational leadership, working towards a more effective and efficient Senate and maintaining a healthy distance from the theatre of partisan politics. But I also applaud all Senate leaders, every leader in this place, for your willingness to work together in exploring priorities for further Senate reforms.
We’re charting our own course, based on our own experience, our own consultations, our own research. And we make an effort to bring wisdom to the table in the manner described by Senator Sinclair. Colleagues, Senator Sinclair calls for us to bring out the best of us, not the worst. I saw you at your best in your debates on medical assistance in dying in 2016. I noted in particular the interventions of Senator Baker, Senator Carignan and Senator Joyal, and we’ve heard from two of those senators again on this bill, on Bill C-7.
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As I had hoped, we’re seeing this again in our debates on Bill C-7, and we’ve seen it from every group and caucus. Honourable senators, we’ve certainly seen it again today. Every one of us in this place has a wealth of knowledge, experience, skills and wisdom. Wisdom enough to know what’s right and decent, the strength of character to call out the bullying and intimidation that we sometimes see in this place, to tackle overt racism, and to no longer look the other way in the face of harassment.
Honourable senators, the Don Meredith days are over. As Senator Sinclair reminds us, wise people behave as such. They don’t take sides. They help others find the best path. They listen carefully, engage in discussion and advise others. As we become less partisan, we can be more objective and thoughtful.
Honourable senators, I know we will all reflect carefully on Senator Sinclair’s thoughtful and virtuous advice, and I thank you for sharing his thoughts and considerable wisdom with us. Let’s move forward together in building a stronger, wiser, more inclusive and more effective Senate of Canada. Let’s have many more days like this one. Thank you.
Hon. Senators: Hear, hear.
(On motion of Senator Gagné, debate adjourned.)
(At 7:43 p.m., pursuant to the orders adopted by the Senate on October 27, 2020 and December 17, 2020, the Senate adjourned until 2 p.m., tomorrow.)