Criminal Code

Bill to Amend--Message from Commons--Motion for Non-Insistence Upon Senate Amendments and Concurrence in Commons Amendments--Debate Adjourned

March 15, 2021


The Hon. the Speaker
[18:52]

Senator Petitclerc, you have six minutes.

Hon. Chantal Petitclerc
[19:00]

As I was saying, future reports will therefore use comparable data on a national level that over time will help reveal trends in requests for and provision of MAID to Canadians with disabilities, but more importantly, they will help inform our future discussions and choices about potential disability-based inequalities or disadvantages in Canada’s MAID regime.

This is in addition to an amendment in the other place at the committee stage, if you remember, requiring that the Minister of Health consult with the minister responsible for the status of persons with disabilities in carrying out her reporting obligations concerning the collection of information and production of reports.

Honourable senators, the combination of our message and the response we have before us today, in my view, is a good example of the collaborative work that can be done between both places. We are demonstrating that we can work very well together and deliver what Canadians need. Moreover, as the Supreme Court recalled in 2014, in the Reference on Senate Reform, one of the fundamental characteristics of the Senate is its complementary role in the legislative process. From the court, I quote from paragraph 56 of this decision:

The contrast between election for members of the House of Commons and executive appointment for Senators is not an accident of history. The framers of the Constitution Act, 1867 deliberately chose executive appointment of Senators in order to allow the Senate to play the specific role of a complementary legislative body of “sober second thought”.

I do believe that the work on Bill C-7 demonstrates this.

With respect to the two amendments that the other place did not accept, those pertaining to advance requests and the clarification of the definition of mental illness in the context of MAID, I don’t see this as a final rejection or a setback. I understand and support the government’s prudent approach. It’s inviting us to spend more time listening to what experts and Canadians think about these two issues during a more in-depth study.

Clearly, we need to have a conversation about advance requests. Even though support for advance requests is significant among Canadians and senators, including me, we agree that there are still some pieces missing.

During my speech on the debates relating to this amendment, I had an opportunity to talk about the Council of Canadian Academies’ conclusion that more time was needed and that adequate safeguards had to be adopted. The majority of experts, practitioners and stakeholders consulted during the government’s February 2020 round table agreed.

I am relieved to see that our vote on this bill will start the 30‑day countdown to the beginning of what is a necessary study of the complexities and details that must be carefully examined before proceeding with advance requests.

In my speech at second reading, I mentioned that this is not the first or the last conversation that we will have about MAID and that this conversation will never be an easy one. However, we once again managed to hold this conversation in a professional, empathetic and dignified way, and I thank you for that.

Honourable colleagues, it is with those who shared their stories, their suffering and their hopes with me in mind that I support this reasonable response from the other place. I encourage you to do the same so that we may pass Bill C-7.

The Hon. the Speaker
[19:06]

Senator Petitclerc, would you take a question?

Senator Petitclerc
[19:06]

Yes, with pleasure.

Hon. Scott Tannas
[19:06]

Senator Petitclerc, I note that in the changes that were made in the House of Commons that any reference to a requirement to reconstitute the committee in the case of an election or prorogation was removed. Especially given the current circumstances — the likelihood of an election and so on — do you have any idea why the government would want that requirement, or moral requirement, to quickly reconstitute the committee removed?

Senator Petitclerc
[19:07]

Thank you for the question, honourable colleague. I think that it is somewhat related to the question Senator Gold was asked earlier. No, I do not have any additional information, and I do not know the reason for that decision. That being said, I think that once the bill is passed and implemented, there could obviously be an election, a prorogation or some other event that is beyond our control, but I believe that the study would resume afterward as required by law.

Hon. Dennis Glen Patterson
[19:08]

Honourable senators, on September 11, 2019, the Quebec Superior Court ruled that the current assisted dying bill was unconstitutional and overly restrictive. On October 5, 2020, the Liberal government finally submitted a bill to address the ruling. In this chamber, we have held pre-studies and devoted long hours to committee study and debate in order to respect a court-imposed deadline. Even then, the deadline has been extended four times in an effort to give us a chance to legislate this properly.

If that story sounds familiar to you, it is because we faced similar issues with the passage of the original Bill C-14. That debate saw a Committee of the Whole struck, as well as a joint parliamentary committee that sought to expedite the passage of a bill that would transform the Canadian health system significantly.

However, with rushing sometimes comes mistakes. In 2016, former senator Joyal, a constitutional law expert, warned the chamber that the exclusion of Canadians suffering intolerably from non-terminal medical conditions would be considered unconstitutional. He wanted a Supreme Court reference tied to the passage of the bill in an effort to address that question. He was, unfortunately, voted down and we stand here now — five years later — as proof positive that his concerns were valid.

This time around, we have expanded the scope of the bill to go beyond the original intent and the issues identified by the court, but again, we are rushing as we do it.

The inclusion of access to medical assistance in dying for those suffering mental illnesses in two years’ time is now a forgone conclusion. It will be happening. Over the course of the next two years, engagement sessions will not focus on if we should be doing this, but how we will implement the change.

You may wonder why I have been so indignant about the lack of consultation with the Inuit of Nunavut, or indeed the Aboriginal peoples of Canada, on Bill C-7. It’s because it’s the same movie over and over again — even with the same government, whose leader pledges that is there is no relationship more important than the one with Indigenous peoples. The government simply cannot seem to learn.

The pattern of ignoring Aboriginal voices in consultation showed itself in recent years in the last Parliament. The development of Bill C-45 displayed clear issues within the bill relating to Aboriginal peoples, such as, to name but a few, opportunities for a successful approach to cultivation on Indigenous lands and the sharing of excise tax revenues, as well as the need to consider scientific advice about known vulnerabilities and negative impacts of cannabis legislation on a proportion of Indigenous peoples, and how those impacts might be mitigated.

Despite these and other issues of importance to Aboriginal people, and despite the Crown’s clear obligation in the Nunavut Agreement to do so, there was no engagement with NTI Social Development Council. That omission and strong recommendations from the Standing Senate Committee on Aboriginal Peoples yielded a pledge from the government of the day, including concrete funding announcements to contribute capital, and operating and maintenance funds towards a Nunavut-based treatment centre, augmented by Inuit-led, community-based mental health programs based on successful models we already have seen in, for example, Pangnirtung, Clyde River and Cambridge Bay. I look forward to receiving the follow-up report from Minister Miller on this project, as was promised to the Aboriginal Peoples Committee when the bill passed.

There was yet another failure of engagement on impactful legislation during the so-called co-development process on the Indigenous Languages Act in the last Parliament, when Inuit Tapiriit Kanatami, representing Inuit of Canada, withdrew from the co-development process for that legislation, citing concerns that the unique needs of the Inuit languages in Canada were overlooked and subordinated in the process.

The same flaw occurred with the Indigenous child welfare legislation, and now, here we are again. I’ve already stood in this chamber and decried the lack of consultation that has taken place on this bill. Since then, I’ve had an opportunity to receive the views on this issue from Isaksimagit Inuusirmi Katujjiqaatigiit Embrace Life Council, a non-profit suicide prevention organization based in Iqaluit, Nunavut. I was pleased to have received advice from Nunavummiut leaders engaged in suicide prevention about the potential impacts of this bill and the mental illness inclusion in a territory that has a disproportionate number of suicides amongst its predominantly Inuit population.

A special meeting with the board of directors led to clear recommendations. Firstly, the board reinforced the obligations of the Government of Canada under section R32.1.1 of the Nunavut Land Claims Agreement Act. They noted that this obligation would be fulfilled by: (a) providing Inuit with an opportunity to participate in the development of social and cultural policies, and in the design of social and cultural programs and services, including their method of delivery in the Nunavut Settlement Area; and (b) endeavouring to reflect Inuit goals and objectives where it puts in place such social and cultural policies, programs and services in the Nunavut Settlement Area. The board noted that Nunavummiut have yet to be consulted on this important issue.

The board of Embrace Life Council also noted the need for more data collection on mental illness in Nunavut to help make informed decisions as:

. . . mental illness has a significant impact on productivity, morbidity, and mortality in Nunavut. More data collection is required to inform methods to address the rate of suicide, enhance the quality of wellness service and educate Nunavummiut on the implications of Bill C-7.

I know I’ve said this before, but it bears repeating: Nunavut does not have adequate mental health supports in place in its territory. Currently, those seeking addiction and mental health support are left underserved or are forced to leave the territory. This is not healthy, and some fear this could lead to situations where it is easier to choose to die than to choose to live. While many promises have been made, very few have been actioned.

When debating Bill C-45, the legalization of cannabis, I drew attention to this urgent call for a mental health and addiction treatment centre in Nunavut. The federal government committed to doing so as a solemn pledge made by ministers of the Crown to encourage passage of that bill. Yet despite several announcements and reassurances before the APPA committee, talks have stalled, and Nunavut seems to be no closer to a bricks-and-mortar treatment facility three years later.

On August 14, 2019, the Minister of Crown-Indigenous Relations made a formal apology to the Qikiqtani Inuit on behalf of the federal government, as a step toward healing the intergovernmental, intergenerational trauma resulting from forced relocations, dog slaughters and other discriminatory policies and practices. The apology was made in response to the Qikiqtani Truth Commission led by the regional Qikiqtani Inuit Association, whose report outlined a path forward and toward healing.

The report included three asks: a formal acknowledgment and apology, a memorandum of understanding to establish the Saimaqatigiingniq Fund and an announcement of Inuit industry and empowerment programs and initiatives.

The Saimaqatigiingniq Fund, which means a new relationship fund, is meant to allow:

. . . Canada and QIA to turn the page on the apology process and look toward the future well-being of Inuit with long-term support for core social and cultural programs as well as innovation and capacity development initiatives.

The programs referenced include crucial mental health and wellness supports. However, despite an initial advance of funding with a MOU for additional financial support, no additional monies have flowed.

Honourable senators, allow me to take this opportunity to shine a light on the mental health crisis in Nunavut, which sadly leads the nation in suicide rates; 10 times the national average. We know a lot about mental illness because there’s virtually no one who has not been touched by suicide in Nunavut.

As long as the promises I’ve referred to remain unfilled, Nunavut Inuit will not have access to crucial mental health supports. I would strongly urge the government to ensure that the funding programs and building are in place within the next two years. This should happen while simultaneously engaging Nunavummiut to ensure that their advice is sought prior to this section of the act coming into force.

Honourable senators, I had frankly wanted to make an amendment to the message to ensure that the consultation obligations under the Nunavut Land Claims Agreement Act were met, but I was told that at the message stage such an amendment would be found out of order. As such, I can only put on the record my concerns, and the concerns I have heard from those across Nunavut.

In their letter to me, the Embrace Life Council stated:

You are empowered with the capacity and privilege to make a difference. We urge you to take the necessary steps so that Inuit in Nunavut have an opportunity to contribute an informed opinion toward the third amendment under Bill C-7.

I take that charge very seriously, as I know you, my colleagues, do as well. I hope that those leading the discussions over the next two years will reach out to and embrace advice from the Inuit of Nunavut on the implementation of the bill in Nunavut. It will also be necessary, in the years leading up to implementation, that those in charge of ensuring Nunavut receives its promised supports in mental health deliver on those promises. We will be vigilant. Qujannamiik. Thank you.

Hon. Pamela Wallin
[19:20]

I rise to speak to the message from the House of Commons on Bill C-7. I want to thank the Government Representative for his kind words about my work on advance directives. And while I am grateful for small mercies, in that the house agreed to accept part of the amendments offered and endorsed overwhelmingly by this chamber, and while it is progress that Audrey’s amendment will become law, it is, in my view, a hard-fought inch in the right direction when we needed a mile.

I am saddened and profoundly disappointed that the government chose to reject the amendment to allow for advance requests, and I think it was a constructive in-scope amendment.

I stand by the belief that consenting to an advance request is not a privilege but a right. It is certainly not a controversial part of MAID as the polls attest: Canadians want this right and they want this choice.

The government’s response is not the best we can do as lawmakers. If the government will not heed the advice of this chamber, then please, at least follow the wishes of those who elected you.

In the time since the Senate sent back its Bill C-7 amendments to the house, an Ipsos Canada poll on MAID confirmed what we already know: an overwhelming majority of Canadians support advance requests for medical assistance in dying — some 87%, in fact. As the public becomes increasingly aware and educated on some of the more complex issues surrounding MAID, such as mental illness and mature minors, still, over 80% continue to support advance requests, notably, even higher for cases of dementia and Alzheimer’s. It’s what people want. For far too many, this feels like a rejection of them by their government.

We have yet to hear real commitment from this government to bring something very specific forward on advance requests — even an acknowledgment or a promise. Instead, we hear that the issue is important but it was far too complex to have been dealt with in Bill C-7.

Now we wait. I hope that within 30 days this committee is struck, and that when it comes to advance directives it will be readied for implementation. I hope as well that we do not see the delays we have seen over so many years. The time is now.

We have already waited for more review, consultation and analysis, and we will wait again for parliaments to dissolve or elections to be held or pandemics to ebb and flow. In the meantime, thousands will die unnecessary deaths or live too long in pain because we could not do what the Supreme Court of Canada said we should and what people have begged us to do. We know we have the constitutional right: the Charter says so.

How many more years of anguish, fear and disqualification for those who have or who are expecting a diagnosis of dementia? What will it take to satisfy those who want more time to study and review? For people like 81-year-old Ron Posno and countless others who have reached out to me directly, they are simply running out of time. For Ron, he will now have to accept living a life that will end without dignity. He knows his death will come sometime in a future when he has long since lost any control or awareness.

There are those who argue that the system now will eventually allow for MAID for those with dementia or Alzheimer’s, but only once they have reached a place where they no longer know, when it’s too late to leave in the company of friends and family, to leave while able to say a proper goodbye. It defeats the whole point.

For Ron and thousands like him, because of their age and their diagnosis, they are still denied the same right as those suffering from cancer or ALS or other illnesses that rob people of dignity and movement and intellect, and instead fill them with pain. They have been forever denied having some sense of autonomy in both life and death.

With the tragedy in long-term care homes, both before and certainly during the pandemic, with a lack of rural access to health care and now a rejection of their pleas for advance requests, it is alarmingly clear that in so many ways we continue to let down the greatest generation. They fought wars, survived depression and now, in their final years, we deny them dignity.

We only need remember the debates in this chamber and the personal stories of many of our colleagues to show how little we, as a society, seem to value our elders. How much longer are we going to let them down? Will we let inaction spill over into the next generation, our generation — to many of us in this chamber?

Perhaps those who chose to deny the right to advance requests have just not lived it yet. Perhaps they have not locked their loved ones behind closed doors or restrained them by tying their frail arms to a bedrail. Perhaps they have not cleaned up the sickening messes or looked into the vacant, fear-filled eyes of a parent as you try to force feed them, prying their mouths open because their body has forgotten how to do these very basic things. To what end? They’re not hungry. They do not know you, where they are or who they once were. Tapping their toes to music is not living.

Our job, and the job of government, is not just to make the easy decisions but to make the difficult ones. Fear of the single-issue voter ought not mean shutting out the will of an overwhelming majority on the issue of advance requests.

I appreciate that this issue is complicated, but if that is our excuse for not taking on the difficult issues there would be no medicare in this country, no railways, no computers, no heart surgery and no vaccines.

It’s time to lead. Hell, it’s even time to follow. It is long past time to do something. I hope we do. Thank you, colleagues.

Hon. Peter Harder
[19:27]

I’d like to briefly make comments with respect to the motion on the message we have received from the other place with respect to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

Let me begin by thanking those who helped shape the Senate’s consideration of this bill, the contributions of many senators, both those in particular on the Standing Senate Committee on Legal and Constitutional Affairs led by Senator Jaffer, and the sponsor of this legislation, Senator Petitclerc, whose dedication and tireless leadership have been an inspiration to us all.

In addition, I would like to thank all senators who participated in earlier debates and moved various amendments, some of which are now seeing themselves reflected in the message back. Finally, I would like to thank Senator Gold. I understand somewhat the task he has as the Government Representative in the Senate. He has done an outstanding job of being the representative of the Senate to the government in respect of this piece of legislation and the views of the Senate, as passed in its amendments, and ensured their appropriate consideration by the government.

Bill C-7 has been a deeply challenging bill for every one of us, whatever our personal conviction. I know that each of us feels the weight of responsibility we carry as parliamentarians. This speaks to the profound issues that we as human beings face in life, for death is a destiny we all share.

During our extensive deliberations, we’ve faced the power of reason and argument; we’ve also faced the power of emotion and our own personal stories. Indeed, we’ve been challenged with soul-searching that such a piece of legislation demands. As legislators, we understand the situation that we now face with a message from the other place.

Colleagues, I believe that the Senate has done its work. We have, through our deliberations and the work of the Senate, triggered an impassioned and gripping public debate.

We have, through our amendments, I believe, improved the bill to a great degree and provoked in the other chamber yet another debate of reflection and, in the broader public, a debate with respect to the amendments we have made. This is not the work of either an illegitimate institution, as some would have us believe, or a rubber stamp. This is the role of the Senate: to provoke, to inquire, to make recommendations for improvements, to urge the government and the House of Commons to consider our amendments and our reflections.

The role of the House of Commons and the government is to consider the recommendations we have made and to take seriously the amendments and views of the Senate.

I believe they have done that in a respectful fashion and through meaningful engagement. They have sought an accommodation with the amendments that have been brought forward by this place. That is their role. They are the representatives of the people, and the government will be held accountable. This must be so because democratic accountability for public policy making flows through the other chamber.

Some, like Professor Andrew Heard of Simon Fraser University, would argue:

If the Senate’s principal task in legislative review is to provide sober second thought, then that role appears fulfilled with the Commons’ initial response to Senate amendments. . . . The alternative is to unnecessarily pit the wishes of elected MPs against appointed Senators, with the Senate appearing to be an obstacle rather than a complement to the elected chamber.

Colleagues, the Senate’s debate on medical assistance in dying is a blueprint for the appropriate discharge of the Senate’s role as a complementary body of sober second thought. We can be proud as an institution that the bill is widely viewed as having been improved due to the amendments that have been accepted in the other place, while the basic integrity of the bill remains.

The government, the House of Commons and Canadians have benefited from the sober second thought of this chamber. We are now in a constructive institutional dialogue between an elected and an appointed chamber. As a legislative body designed to provide a complementary review of government bills before they become the law of the land and a counterweight to majoritarianism in the other place, the Senate plays an important role in our federal bicameral parliamentary system. However, robust bicameralism that is respectful of the democratic expression, particularly in a minority House of Commons, has its limits.

The Senate is an advisory body, not a politically accountable body. We are here to advise, amend and improve the legislation that is given to us, but we are not here to obstruct. The political accountability goes through the other chamber. I respectfully submit that it is by concurring with the message of the other place — and not by insisting on further amendments — that we have appropriately and usefully fulfilled our role as the complementary body of sober second thought.

Our former Senate colleague Senator Tkachuk understood that, in the end, the right to govern is for those who are elected to govern by the people of the country. Five years ago, in the passionate speech he gave on the House of Commons message to Bill C-14 — and remember, he opposed this legislation — he said:

We cannot — and I will not — thwart the will of the elected members of Parliament. We have done our job, and although it breaks my heart, I am going to continue to do my duty by voting for this bill in the form that it has been sent back to us by the people’s representatives.

In the end, colleagues, the Senate acts neither as a rubber stamp nor as a rival to the people’s representatives, precisely as the Founding Fathers had intended and — most importantly — where Canadians expect us to be.

I would therefore ask you to support this message before us and concur in the decision of the other place. Thank you.

Hon. Mobina S. B. Jaffer
[19:34]

Honourable senators, I rise today to speak to Bill C-7 and the message received from the House of Commons.

Senators, during COVID times we are all working under very difficult circumstances, especially our staff and the Senate staff who are working under even tougher conditions.

The Legal Committee was formed on November 18, 2020, and on November 19 I received a call from the leader of the Senate, Senator Gold, that the leaders had agreed that the Legal Committee could start a pre-study of Bill C-7 on November 23, a few days later. This was a very short timeline.

Today I want to acknowledge the support that Blair Armitage, Clerk Assistant, Committees, and Shaila Anwar, Principal Clerk, Committees, gave to our committee. They put together all the staff and the resources that they could for us to carry out our work, and I thank them for that.

The clerk of the committee, Mark Palmer, did a yeoman’s job of organizing 81 witnesses with a few days’ notice to be heard in five days.

Later, on February 1, 2 and 3, we heard from 66 witnesses.

I would like to acknowledge the hard work of our clerk, Mark Palmer, whose dedication and commitment were crucial as he successfully managed our work. I would also like to thank our clerks and administrative staff, this team of hardworking devoted members who worked silently behind the scenes to facilitate our work. We could not have done our work without the continual assistance of Joëlle Nadeau, Evelyne Cote, Maritza Jean-Pierre, Lori Meldrum, Debbie Larocque, Brigitte Martineau and Elda Donnelly.

I also want to thank Heather Lank, Parliamentary Librarian, and her staff for giving us tremendous support.

We had two amazing analysts, Julian Walker and Michaela Keenan-Pelletier, who produced not one but two reports besides supporting us on the study of Bill C-7. Our analysts prepared two reports capturing everything we heard during the sessions and assisted us with the background analysis and ideas to help us navigate this critical and sensitive legislation.

Many others have helped, and I sincerely apologize if I have missed anyone, and I express my absolute gratitude.

Senators, I want to thank the interpreters in particular. This was a very difficult study for us. Imagine how much harder it was for the interpreters. And not only that, but we, as you know, senators, made available many witnesses who had challenges. When some witnesses showed up to testify, there were challenges. It is amazing how the interpreters would not let them leave. They worked hard with them so we senators could hear from all witnesses who wanted to testify. I have really learned a very important lesson: Our interpreters are exceptional, and COVID is making it very difficult, but they continue to work with us. I thank them for that.

I also want to thank the members of the Legal and Constitutional Affairs steering committee — Senator Batters, Senator Campbell and Senator Dalphond — for tirelessly working on this bill, dealing with a very heavy schedule during the limiting circumstances of a pandemic lockdown and trying to meet a tough deadline. Thank you, honourable senators.

A big thank you goes to the Legal and Constitutional Affairs Committee members and all senators for diligently studying this bill.

I also want to thank the sponsor of the bill, Senator Petitclerc, and the critic, Senator Carignan.

Senators, thank you for all the support you gave to the Legal and Constitutional Affairs Committee. I believe that these are tough issues in front of us, and we have all worked in the best way we can to serve Canadians because we know what this bill is about. It is about suffering and about death.

In her letter to us, which we all received, Janet Hopkins asked: “What is considered an acceptable amount of suffering?”

Immediately, the words of Jason LeBlanc came to mind. Mr. LeBlanc is a caretaker of his common-law partner who is a MAID applicant. At the hearings, he said that:

This . . . decision . . . is not made by your doctor, your caregiver, your family or your government. The concept of assisted death is about Canadians being able to grant themselves an end to suffering that they deem to be intolerable.

We all know, senators, that MAID is a complicated topic with very real consequences on the lives of the most vulnerable Canadians. It intersects with health care, palliative care, mental illness, systemic racism, access to social services and, most of all, the right of a person to take ownership of how they live and how they die.

As Ms. Hopkins told us: “It’s not that we want to die, it is that the pain has taken away the will to live.”

Bearing such pain in mind directed our committee study on Bill C-7. We heard from witnesses who were affected Canadians, leading university professors, medical practitioners, psychiatrists, legal experts and non-governmental agencies. In February, as I’ve already said, we heard from another 66 witnesses and received tens of thousands of submissions. With the help of our analysts, the committee produced two reports over the course of our studies.

In our studies, senators, we realized that one aspect that was overlooked in the bill might affect racialized Canadians. Sarah Jama, in her strong testimony at the committee, told us: “These priorities do not line up with the realities of classism, racism and ableism in our country.”

Ms. Jama was justified in assuming this as we came to learn when we received the government’s Gender-based Analysis Plus. The GBA+ should include a race-based analysis but, unfortunately, this GBA did not. The reason was, as Justice Minister Lametti explained, that there was not sufficient disaggregated data.

I have to admit that I was left wondering how legislators and parliamentarians are 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 information? So I moved an amendment to include the collection of race-based data.

Honourable senators, I want to thank the minister for supporting my amendment and echoing our call for systemic collection and analysis of data on the race of all people who request and receive MAID.

Many of you know that I was very hesitant to expand the amendment. We had many discussions about this because I was worried that if I added any other group this amendment would fail. So I did not want to expand the amendment beyond the collection of race-based data as I was not sure that the government would accept it. That said, I was extremely overjoyed that the government, and especially Minister Lametti, took the important next step and made this amendment richer by adding the data collection respecting Indigenous identity and disability of all people who request and receive MAID.

I commend the statement by Minister Lametti’s Parliamentary Secretary in his speech announcing the government’s expansion of my amendment. In it, he explains the inclusion of Indigenous identity and disability as well as race:

This, of course, is important, especially and specifically as we broaden the MAID regime to circumstances where death is not reasonably foreseeable, in response to the Truchon decision, which creates the real possibility that people will seek and obtain MAID because of vulnerabilities in their lives as opposed to their health conditions. I am grateful to the Senate for proposing this important legislative change.

This amendment to Bill C-7 ensures the race, Indigenous identity and disability data collection of all people who request and receive MAID. In doing so, it also ensures that all parliamentarians know exactly who is being impacted by the expansion of the MAID regime.

Honourable senators, I have to share something with you. When I moved this amendment, I did not think that this amendment would pass, but the tremendous support that I have received from all of you — and I mean all of you — has truly humbled me. I feel that we are one body that truly looks after the most vulnerable. I salute you and I thank you. I very much appreciate the support you gave. Thank you very much.

[19:47]

Honourable colleagues, I rise today to speak to the message from the House of Commons on the Senate amendments to Bill C-7. More specifically, my speech will be on my disagreement with the members’ collective response, as contained in this message, to the amendments of Senators Dalphond, Kutcher and Wallin.

I will begin by commenting on the House of Commons’ rejection of Senator Wallin’s amendment, which authorizes a patient to give advance consent to medical assistance in dying when their natural death is not reasonably foreseeable.

It saddens me to think that the government’s inaction on the issue of advance consent for persons suffering from Alzheimer’s disease may have serious consequences in the months and years to come. I am thinking about people who, at the time of their diagnosis, are able to consent to, receive or refuse medical care, but whose natural death is not reasonably foreseeable.

I am obviously not saying that every person with this disease would like to receive MAID. Nonetheless, some of them would like to have the option.

Because people with Alzheimer’s don’t have the right to give advance consent to MAID if their natural death is not reasonably foreseeable, I worry that some may choose to end their lives before their illness gets so bad that they lose the ability to choose death with dignity. I remind senators that people at an advanced stage of this terrible disease may lose all autonomy and generally become unable to recognize their loved ones.

As we know, the federal government did not meet the legal obligation set out in Bill C-14 to initiate a parliamentary review in June 2020 of some issues associated with MAID, including the complex issue of advance requests for MAID. The government’s current position is that advance requests in cases of dementia are complicated and that it needs more time to study them.

Do you really think this answer is reassuring to people who have recently been diagnosed with Alzheimer’s and who would want to access MAID once their disease reaches an advanced stage?

When Bill C-14 was being studied more than four years ago, the federal government promised Canadians with illnesses that it would study the complicated issues surrounding advance requests in the case of dementia. On May 2, 2016, the federal health minister at the time, the Honourable Jane Philpott, said the following:

I think that on the matter of things like dementia, for instance, one of the real challenges — and you’ve heard me speak to this repeatedly — is that people fear the loss of dignity that happens. They fear that they will get into a position where they will be a burden on their families or where they won’t be able to care for themselves. To me, one of the things, in addition to the fact that we’re going to study this in an ongoing way and we’re absolutely committed to that, is that we need to do better at caring for people with dementia, for example.

Since that statement in 2016, how many Alzheimer’s patients have lost their capacity to consent and have not qualified for MAID because their natural death was not reasonably foreseeable? The government’s delay in taking action and conducting a parliamentary review has had an impact on these individuals and their loved ones, as well as on those who will be diagnosed with Alzheimer’s in 2021. I am outraged and disturbed by this inaction.

I hope that the committee that will be formed to conduct the parliamentary review will examine the work that the Quebec government has done on the issue of advance consent. I am thinking, for example, of the 2019 report on MAID for persons who have lost the capacity to consent that was released by the expert panel established by the Quebec government.

With that report, the joint committee’s 2016 report, the Council of Canadian Academies’ impressive report on advance requests, and the forthcoming report based on the parliamentary review of Bills C-14 and C-7, I see no reason the federal government can’t quickly introduce a new bill that would allow advance requests for MAID in cases where natural death is not reasonably foreseeable.

Now let’s talk about the House of Commons’ rejection of Senator Dalphond’s amendment, which clarified that neurocognitive disorders, such as Alzheimer’s and other diseases that cause dementia, would not be considered mental illnesses within the meaning of this bill. This amendment would have made it so that a person whose only health issue is a neurocognitive disorder could not be denied the right to MAID.

My thought process here is based on the writings of professor emeritus Pierre-André Côté. In paragraph 1594 of his 2009 treatise on the interpretation of legislation, he explains that an amendment adopted by Parliament as a whole is often a clear indication of legislative intent. I wanted to mention this interpretation principle because I believe that, if the Senate agrees to the Bill C-7 amendments proposed by the House of Commons, judges and doctors interpreting the MAID legislation will conclude that the decision by Parliament as a whole not to specify that a neurocognitive disorder isn’t a mental illness in the Criminal Code is an unclear indication of the legislative intent.

It is true that a document from the Department of Justice and certain statements that officials from that department made before the Senate committee may support the interpretation that a neurocognitive disorder does not constitute a mental illness within the meaning of the act. 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.

However, something that Minister Lametti said recently in the other place stood out to me, specifically, that this type of government document, which provides information about bills, does not constitute a legal opinion. I want to quote his February 1 testimony regarding the Charter Statement on Bill C-7, which was issued by the Department of Justice. He said, and I quote:

Charter statements are not legal opinions. Their purpose instead is to provide the public and Parliament with legal information on the potential effects of a bill on Charter rights as well as considerations that support a bill’s consistency with the Charter.

Although it is not a legal opinion, I want to emphasize that the government’s legislative background document on Bill C-7 states rather clearly that the definition of mental illness set out in the bill does not include neurocognitive disorders.

Despite this, I don’t see how this government document can provide adequate assurances to patients with neurocognitive disorders that they will be able to request MAID if they meet the other conditions set out in the law. It will also be impossible to confirm the state of the law for doctors called upon to administer MAID to patients with neurocognitive disorders.

I am concerned because, during our study of Bill C-7, Parliament heard from witnesses and senators that the term “mental illness” is not well defined and, more specifically, it is unclear whether neurocognitive disorders are or are not included in that term. I wish to quote our knowledgeable colleague, Senator Kutcher, who said the following in this chamber on February 9, 2021:

Persons with neurocognitive disorders, such as dementias, could be denied assessment for MAID. International diagnostic systems such as the Diagnostic and Statistical Manual and the International Classification of Diseases consider these to be mental disorders, and persons with them are frequently treated by a health care team of which psychiatrists are often in the role of the most responsible physician.

If the Senate agrees to adopt the proposal from the House of Commons, the collective response of Parliament will be to refuse to specify in the legislation that a neurocognitive disorder is not a mental illness.

That way, no one can say that the content of the government document proposing an interpretation of the term “mental illness” that excludes neurocognitive disorders would prevail over the legislator’s deliberate decision to not specify it in the legislation.

Is it conceivable that doctors might deny medical assistance in dying to persons with a neurocognitive disorder out of fear that providing MAID would constitute a criminal offence of assisted suicide under Bill C-7?

I am deeply concerned about this situation, and that is why I disagree with the other place’s refusal to pass Senator Dalphond’s amendment.

I would like to raise one last point, namely the response of the other place to the Senate amendment on excluding the right to MAID when mental illness is the sole underlying condition. I supported this amendment proposed by Senator Kutcher, who suggested that this exclusion apply only for 18 months, but MPs are now proposing that we extend that period to 24 months. I disagree with that idea for two reasons.

First, the president of the Association des médecins psychiatres du Québec told the Senate committee on February 3 that a 12‑month period would be an appropriate amount of time. Professor Jocelyn Downie, from the Health Law Institute at Dalhousie University, said the same thing when she appeared on November 24, 2020.

Second, if the exclusion period is expanded to 24 months, patients whose suffering is intolerable and irremediable will once again have to challenge the constitutionality of the exclusion. In the earlier stages of the bill, I explained why I thought this exclusion, no matter how long it was for, was a violation of the Canadian Charter. I share the concerns Senator Boisvenu expressed on December 16, 2020, that in the near future, the Senate would end up right where we are now, having to study a MAID bill in response to a ruling that has declared a section of this law unconstitutional. I expressed this same concern in my last speech on Bill C-14 back on June 17, 2016, and yet this sadly keeps happening again and again.

Once again, patients who are seriously ill will have to take on the burden of challenging a provision that denies them access to MAID because it violates the Charter.

My speech today has something else in common with the one I gave during the study of Bill C-14. Like in 2016, I want to conclude my remarks by expressing how proud I am of the work accomplished in this chamber and to recognize that, even though senators, including some from my own caucus, defended different positions, the debates took place in a calm and respectful manner.

I also want to recognize the commitment and respect demonstrated by the witnesses who, throughout the study of Bill C-7, shared their ideas on issues as sensitive as medical assistance in dying with intelligence and wisdom. Their opinions elevated the quality of debate and our collective reflection on this subject that is so important to all Canadians, particularly those who are seriously ill or who have severe disabilities.

Honourable senators, I believe that we should exercise our constitutional role, stop letting the courts decide limits and rationales in a free and democratic society, and do what we need to do to establish the legal framework, rather than delegating that power to the courts and allowing them to dictate the framework for us.

Honourable senators, I thank you for your attention, and I encourage you to vote against the message from the House of Commons.

The Hon. the Speaker
[20:01]

Senator Carignan, will you take a question?

[20:01]

Yes, with pleasure.

The Hon. the Speaker
[20:01]

Your time has expired. Are you asking for five more minutes?

[20:01]

Yes, if possible.

The Hon. the Speaker
[20:01]

I’m sorry, senator, but leave is not granted.

Hon. Pierre J. Dalphond
[20:02]

Honourable senators, we are asked today by Senator Gold, the Government Representative in the Senate, to accept the response of the other place to the amendments proposed by the Senate to Bill C-7 and to conclude this legislative process to broaden access to MAID by removing the criterion of reasonably foreseeable natural death.

Today I rise, proud of the work of this house. As you all know, this place has done a thorough review of the bill and all related concerns. In doing so, we have devoted 8 full days in committee to listen to witnesses and 10 sitting days in this chamber to debate issues and to propose and vote on amendments.

Debates in this chamber were structured and generally reflective of serious consideration of the issues at stake. No surprise, the Senate’s work has received national media coverage and social media attention. We also received hundreds of emails and briefs from stakeholders, organizations and Canadians.

Through the whole process, we have shown to Canadians that the Senate is made of members that take time to analyze the details of important bills and, at the end of the process, enjoy the freedom to propose amendments to improve such a bill while respecting its scope and purpose.

Our proposed amendments were duly considered by the government and by a majority of MPs in the other place. Those deliberations resulted in the revised Bill C-7, now back to us for a final and last consideration.

It is unfortunate that some MPs have refused to consider the Senate amendments because they originated in what they describe as an “illegitimate” institution. Colleagues, allow me to briefly comment on this assertion.

How should we define legitimacy? Where do we find the source of legitimacy? Can we say that an MP elected with 25% of the votes cast in a riding is illegitimate? Can we say that a government made up of members of a party that has received fewer votes than the official opposition is illegitimate? Can we say that a prime minister chosen by a political party and not by a majority of Canadians is illegitimate?

I’ll venture to say that in a constitutional democracy like ours, legitimacy rests with the people and in the constitutional documents that they have agreed to directly or through their representatives.

In Canada, our current written Constitution has not been forced upon us by a foreign king or government. It comprises a series of documents that were negotiated and drafted by representatives of this country in 1864 and thereafter, including the Charter of Rights and Freedoms. These documents are not only legally binding documents but our “basic norms,” to use philosopher Hans Kelsen’s terminology.

The Senate exists because the drafters of the Constitution Act, 1867, and subsequent changes devoted substantial effort to design an upper house as a necessary part of the federal Parliament. The Senate is not only a legally valid chamber of Parliament but an institution as legitimate as the courts, including the Supreme Court of Canada, the provincial and federal governments and the House of Commons.

Of course, each institution, be it the Supreme Court, a government, a legislature or the Senate remains legitimate only insofar as it does not overreach its powers and its mission.

The Senate’s legitimacy rests on its role as defined in our constitutional documents. The drafters of our Constitution have designed a Senate composed of individuals of a certain age residing in the different regions of this country, appointed until they reach the age of 75, to bring to the legislative process a perspective different from those of MPs, elected mostly as members of political parties.

As said by these drafters in their speeches and as reflected in our constitutional documents, the Senate, though called the upper house of Parliament, is not superior in power or authority to the House of Commons, and it does not pretend to be. It is, rather, designed to play a complementary and ultimately differential role to a House of Commons made up of MPs regularly elected by the people. Thus, the famous description of the Senate as the place of sober second — I repeat, second — thought.

With respect to Bill C-7, we fulfilled that role by proposing five amendments to the House of Commons that are essentially based on compassion, as Bloc Québécois leader Yves-François Blanchet said in his comments before the parliamentary press gallery. In response to our proposals, the government decided to move amendments that either respond to them or propose mechanisms to respond quickly. This government response has been considered, debated and accepted by a majority of the members of the House of Commons from several political parties. As a result, we have a better bill before us today.

The government and a majority of MPs also committed to work closely with us to establish a special joint committee in the near future to review the experience to date with MAID, to make proposals on advance directives and on access to MAID by mature minors, and to examine the report of a panel of experts mandated to propose protocols and safeguards relating to access to MAID where a patient’s enduring and intolerable suffering is solely the result of a mental disorder.

The 24-month timeframe is reasonable given that, if amendments are needed to regulate access to medical assistance in dying following the reports of the expert panel and special committee, it will be possible to make them even if an election is held in the meantime.

We must now decide whether, under rule 16-3(2), we want to insist on our amendments as proposed or state that we are satisfied with the revised bill that was sent back to us. In my opinion, as I said in June 2018 when we debated the legislation on cannabis, a response from the House of Commons to the proposed Senate amendments demands deference since, at the end of the day, the elected members are the ones who are accountable to the public with regard to this bill.

Honourable senators, I submit for your consideration that the Senate should disregard the House of Commons’ response to our proposed amendments only under very specific circumstances and never based on political opinions about the rightness of the policy objective in the contemplated bill as defined by a majority of members in the other place. That could possibly be done at second reading of a bill, but we are long past that now.

At this stage, we have reached a point where we are not speaking about the content of the bill but the nature of the relationship we would like to establish between this house and the other house in a manner that preserves our legitimacy. In other words, we must define the relationship with the other place, respectful of the constitutional design without overreaching.

Honourable colleagues, I propose that we adopt, at this stage of the legislative process, a principle-based approach relying on objective criteria and not on political, economic, sociological, religious, personal or other views.

In June 2018, I said at a similar stage of the debate on the Cannabis Act that we must conduct a contextual analysis using certain objective criteria that I outlined, and certainly other criteria. I will only go over them briefly today. These are inspired by previous statements by members of this chamber, current and past, as well as written texts by learned authors, such as Professor Emeritus Paul Thomas of the University of Manitoba.

First, if the response is accepted, will it result in legislation that violates the Constitution or the Charter of Rights? For me, the revised bill is no longer an unjustifiable breach under section 1 of the Charter of the equality rights of those suffering from a mental disorder. If, for you, the answer is unclear, I suggest that the task of answering that question be left to the courts.

Second, is the purpose of the bill an election campaign issue for the government? Or is it instead an extremely controversial issue for which voters did not give the government a mandate? As we all know, the origin of this bill is a decision made publicly by the Prime Minister and the Attorney General during the last general election, not to appeal the judgment of the Quebec Superior Court and instead to propose a bill implementing the judgment.

In addition, polls show that over 70% of Canadians surveyed support the principle of broadening access to MAID.

Third, does the evidence provided to both houses unequivocally and unambiguously show that the message, if accepted, will result in a bill fundamentally defective in part or in whole? Clearly, the bill as amended, pursuant to the message, is not of that nature. To the contrary, it addresses fundamental flaws related to the blanket exclusion of mental illness and the scope of the definition of “mental illness.”

Fourth, does the response show the majority is abusing one or more minorities, showing contempt for some fundamental rights or demonstrating favouritism for one region at the expense of another? Clearly, the bill, as amended in the response, is indicative of a willingness to allow access to MAID to all, without discrimination based on prohibited grounds such as mental disorders.

In saying that, I am mindful of the concerns raised by national disability rights organizations who have made their case for more resources to ensure the right to live in dignity. These concerns have been echoed by some UN Special Rapporteurs and should be further examined.

There’s no doubt that more can be done in terms of improving our health care system and better understanding the social determinants of health, but these arguments must never be used as grounds to deny other Canadians of their constitutional right to autonomy, including the right to die with dignity if they so wish.

Fifth, does the House of Commons response reject Senate amendments designed to prevent unforeseeable and irreparable damage to the national interest? Clearly, the bill and the message received today does not support such a conclusion.

For these reasons, honourable senators, I invite you to vote in favour of the House of Commons message. I want to add that to do otherwise will be an illegitimate overreach demonstrating that the Senate does not understand its true role.

For these reasons, I repeat, we should accept the motion as proposed by Senator Gold. Thank you, meegwetch.

Hon. Donna Dasko
[20:15]

Honourable senators, I rise today to speak to the message from the other place on Bill C-7. I want to start by acknowledging the very important work that was done in this chamber to build upon the work of the government and the other place and to contribute to the improved legislation before us today. I am very pleased that the government has chosen to accept so much of our work.

I am encouraged that the government has accepted the inclusion of those with mental illness in the framework for medical assistance in dying. The longer sunset clause is entirely acceptable. As articulated by Senator Kutcher and others, the sunset clause will give experts the time they need to determine the appropriate safeguards for incorporating those with mental illness into the MAID process.

I am disappointed that Senator Wallin’s amendment with respect to advance requests was not supported by the government. However, I do see value in studying advance planning further so as to ensure that safeguards are in place. We know that the broadening of MAID to include advance requests is supported by Canadians, as Senator Wallin has so clearly said this evening, and I sincerely hope that we can find a way to go forward with this in the future.

The proposed joint parliamentary committee on medical assistance in dying is the right mechanism to examine this issue and others. The amendment establishing this committee, which originated here with Senator Tannas, will ensure that Canadians’ voices are heard and that scrutiny is provided to these important life and death issues.

As I said when I spoke at third reading, Bill C-7 is a point on an arc. It is still a work in progress, and this committee will look at how we improve this legislation down the road.

Honourable senators, I support the message sent to us by the other place, and I will vote to adopt the message. However, I would like to take just a few minutes here to discuss one aspect of this message: Senator Jaffer’s amendment to require the collection of race-based data as part of the MAID data collection regime and the government’s subsequent expansion of the requirement before us today.

In its reply, the government not only supported the spirit and content of Senator Jaffer’s forward-looking amendment, but also expanded the amendment in key areas. The government modified the language of the amendment to restore the provision that data collection authorized in the bill is to be used for the purpose of monitoring medical assistance in dying.

Second, the government expanded the scope of the amendment to include collection of Indigenous identity information as well as race for those applying for or receiving MAID. This was a necessary and welcome expansion because, in data collection, race and Indigenous status are separate demographic markers.

Third, the government further expanded data collection by including the collection of disability status information, as defined by section 2 of the Accessible Canada Act for those applying for or receiving MAID.

As we know, colleagues, much concern was expressed by the disability community with respect to the MAID legislation and its possible negative impacts. This expanded data collection will ensure that we will have the information we need to be able to understand, on an ongoing basis, how MAID will impact those who live with disabilities.

Finally, while the government maintained the spirit of Senator Jaffer’s amendments, it broadened the explanatory clause.

Honourable senators, this is a welcome expansion of data collection that will help answer some vital questions that have been raised in this chamber and elsewhere about MAID. However, I want to express my concerns, and those concerns are what is missing from these amendments. Simply put, three measures are missing: age, gender and socio-economic status.

We need to analyze gender inequalities and age inequalities in medical assistance in dying. We need to have these measures to examine intersectionality as well. Let us think back to the significant discussions we have had about vulnerable populations and how they might be disproportionately negatively affected by this expansion of MAID.

The only way that we can fully understand the impacts on vulnerable people is to determine the socio-economic status of those who apply for or receive MAID. We owe this analysis to the many who have expressed grave concerns about the impacts of MAID; we owe it to them to make sure we do this analysis.

I have four words: age, gender and socio-economic status. Why were they not included in this legislation? Four words — I know exactly where they would go. I could put them in this moment. It would have been so easy to put those four words right in there; very easy. Without guaranteeing these measures, we are left guessing about whether we can ever accomplish the investigations that are needed.

Colleagues, I have asked Minister Lametti about these issues, and in a written response, he referred me to speak with Minister Hajdu. As of this moment, I look forward to her reply. I will continue to pursue this issue after the legislation is passed and as the joint committee takes up its work.

In conclusion, I will support this message. The amended legislation is truly the very best way for us to move the agenda forward with a MAID regime that I believe has the support of Canadians.

Thank you. Meegwetch.