Criminal Code

Bill to Amend--Second Reading--Debate Continued

December 16, 2020


Hon. Howard Wetston
[19:00]

Thank you, Senator Jaffer. Obviously, this bill is emotionally draining for many of us, if not all of us, and I’m most appreciative of your heartfelt comments. I’m just going to ask you a very simple question if I may, and I don’t mean to be rhetorical in the question that I am asking, but do you believe that Bill C-7 will have the overall effect of pressuring or encouraging or inviting people to pursue death if possible? Or is it giving those same people a choice, at the appropriate time, for them to die with dignity that they may not have at present?

Hon. Mobina S. B. Jaffer
[19:01]

Senator Wetston, I struggle with this every day. If I looked you in the eye and told you that I don’t believe that some people will be pressured, I would be lying. I think some will be. That’s where we come into play, and we have to make sure that there are enough safeguards so that people are not pressured. But it will also give those who have been waiting for such a long time the ability to die with dignity. So we are providing a pathway for people to die with dignity, but we also have to make sure that there are sufficient resources, like palliative care and access to proper medical care, so that people are not forced. That is also our duty. Senator Wetston, that’s something I struggle with every day.

Senator Wetston
[19:02]

Thank you very much.

[19:02]

Senator Jaffer, will you take a question?

Senator Jaffer
[19:02]

Yes, I will.

[19:02]

Thank you very much. I think a number of us were touched by your speech and could certainly identify with it. I am a practising Catholic, and my religion is very important to me. I certainly understand what you are saying. It is a struggle. It’s really a challenge. You spoke about your religion being an important part of who you are, but being a politician, we represent Canadians, and 82% of Canadians believe that they should be able to make advance requests; 85% believe that a person’s request for MAID should be respected if they have been assessed and approved for assisted dying but lose their capacity to consent prior to the planned date. Those numbers to me were astounding and shocking, but they are the people that we all represent.

You asked the question: What’s the difference between “do not resuscitate” and MAID? I’m also wondering. What is the difference when people — and we have all heard of people who refuse to eat or refuse to take water. Basically, they are committing suicide is what they’re doing. So what is the difference between those things and medical assistance in dying?

Senator Jaffer
[19:04]

Senator Cordy, I was your seatmate in 2016, and both of us struggled. You remember the terrible struggles we had, and we still have them. That’s the question people are asking, the one you are putting across. Those were not my words. They were Penny Mills’ words: “What’s the difference?” That’s the challenge, that we accept one, do not resuscitate, and MAID. That’s what people who want the choice are asking: What’s the difference? And that’s something we as parliamentarians have to look in the eye and say, “What are we doing? Are we going to provide MAID —”

The Hon. the Acting Speaker
[19:04]

Senator Jaffer, I apologize for interrupting. Your time has expired. Are you asking for another five minutes? There are other questions.

Senator Jaffer
[19:05]

May I ask for another five minutes, please?

The Hon. the Acting Speaker
[19:05]

Is leave granted, colleagues? It is.

Senator Jaffer
[19:05]

Thank you, senators. That’s the challenge, Senator Cordy. You and I both struggled with this before. I believe that if we as parliamentarians are going to provide death with dignity, we also have to face those questions you asked.

[19:05]

One of the things that we can’t forget, and which I sometimes forget and was reminded of when Senator Harder spoke and you spoke, is that we are not revisiting this whole decision again, because medical assistance in dying is legal now. I think even my question to you today basically was talking about Bill C-14. I think that’s what many people are confusing. Medical assistance in dying is legal in Canada in 2020. We are just looking at making changes to it. Would that not be correct?

Senator Jaffer
[19:05]

I see it as a progression. As we learn more, Canadians are saying, “Yes, you brought in MAID, but then you put all these things in place that cause us a lot of pain and suffering.” We are revisiting those issues. That’s what we are doing. Plus, Senator Cordy, you remember the struggles we had and that we wanted foreseeable death not to be the only option. That’s what is in place now, what we struggled with in 2016, so I believe it is a progression.

[19:06]

Thank you very much.

Hon. Diane Bellemare
[19:06]

Senator Jaffer, will you accept another question?

Senator Jaffer
[19:06]

Yes. Absolutely.

Senator Bellemare
[19:06]

I will take you to another area. I think I understand that we have a bill in front of us that is quite complex but narrow at the same time, compared to Bill C-14. Also, we have a situation where we have adopted Bill C-14, and some dispositions are now known to be unconstitutional, and Bill C-7 is to balance, to make it constitutional. My question to you is the following: In the future — because I think it is not the first time now that we will struggle with this issue because it is life and death and it is complex. I think I am of the idea that we have to go step by step. But eventually, after a review of the bill, we may have to consider many issues. Do you think that we will be able in Canada to have the same kind of disposition all over the country?

Senator Jaffer
[19:08]

Senator, that’s such a difficult question, because we are a large country, and what has become very obvious with our pre-study is the terrible situation for Indigenous peoples and the terrible situation in rural areas. That’s why I believe what I heard in the most profound speech given by Senator Mégie on palliative care. And I believe that with this, hand in hand, we have to say to the government, “We have to put observations in place that this doesn’t go by itself.” With this you have to put proper palliative care. We have to make it possible that we have the same sort of service across Canada.

I think that’s something that has been raised time and again in the pre-study and before. And I think that this goes hand in hand when we tell the government — if we do — that we accept this; we have to say, “This is only part of it. We hold you liable for the other things that people were saying.”

Senator Bellemare
[19:09]

Thank you.

Hon. Julie Miville-Dechêne
[19:09]

Thank you, Senator Jaffer, for your speech — and we all know that some people will be pushed towards MAID and we have to try to prevent them but — since this is all in provincial realms. Since palliative care and social services are not — we have no power over them. This is my own struggle, not having enough services and opening up MAID. So I want to hear you on that. And I know there’s no easy answer.

The Hon. the Acting Speaker
[19:10]

Senator Jaffer, your time has expired again. Would you like to ask for another five minutes?

The Hon. the Acting Speaker
[19:10]

Leave is not granted. I’m sorry, Senator Jaffer.

Hon. Pierre-Hugues Boisvenu
[19:10]

Honourable senators, I rise today to speak to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), at second reading.

I want to start by acknowledging the hard work of my colleagues on the Standing Senate Committee on Legal and Constitutional Affairs during the week-long pre-study of Bill C-7. The committee members were open, actively listened and came to conclusions as a group.

I want to express my support to those affected by this bill who are suffering from serious and incurable physical or mental illnesses and who struggle every day with challenges that few of us can truly understand.

My thoughts go out to the families of those who are ineligible for MAID under Bill C-14, or who were ineligible, and who had to take drastic action to put an end to their loved one’s life and therefore their suffering, even though these individuals had the right to a dignified and humane end of life.

I thought it was a shame that none of the witnesses invited to the committee’s pre-study were patients with a personal stake in MAID and that no families were able to participate, share their perspectives and contribute to this debate, which is, after all, about them first and foremost. That was my biggest disappointment and one of the weaknesses of our pre-study, considering that it was the one opportunity for committee members to better understand the day-to-day suffering of these human beings and their loved ones.

The same applies to victims of crime. So often, when people are suffering because life has unfairly done them wrong, we lawmakers pay more attention to the testimony of experts, scientists, legal experts and religious figures without considering what the people who are directly affected feel and can contribute.

In my view, I think the victims of Bill C-14 are the ones we should have listened to, and should listen to, as we examine Bill C-7 in the coming months, and who should be at the heart of our reflection, rather than the experts. I see those individuals as the real experts on what a law imposes on their quality of life and especially on how they choose to end their lives. Very few of the stakeholders we consulted can truly understand their suffering, and I’m convinced that if we had heard from witnesses affected by MAID, we wouldn’t be so divided and torn in this debate.

Medical assistance in dying is a very emotional subject for many of us. It stirs up a lot of emotions and can even make us question our own perceptions of life and death. Basically, it is an opportunity for us to reflect on our human values as we are confronted with the cruel and unacceptable situations some human beings are unjustly condemned to live with.

Honourable colleagues, one of the first things I want to address in this chamber is the attitude that the federal government has taken in its management of medical assistance in dying since 2016. I get the impression that the federal government is just trying to rush Bill C-7 through both chambers without giving us, the legislators, the time we need to do our job properly and analyze the content of this bill within a reasonable time frame.

After all, it was the government that didn’t do its homework. We would not be in this situation if Justin Trudeau’s team had listened to the Senate when it made significant recommendations regarding Bill C-14 in 2016.

Since the government was bound by the deadline set by the Quebec Superior Court for reviewing the legislation, it was the government’s responsibility to allow enough time for the study of its new bill on MAID. It had the time, but chose not to take it, even though we all know that MAID is a sensitive topic and that the study of Bill C-14 was long and difficult. This time, we all know that the government decided to create a sense of artificial urgency because its own representatives are behind on their own homework.

I also remind you that the first iteration of Bill C-7 was introduced in February 2020 and died on the Order Paper with the prorogation of Parliament on August 18, when the Prime Minister was grappling with the WE Charity scandal. He chose to waste six precious weeks of work in the midst of the pandemic instead of taking responsibility and answering questions before the House of Commons Standing Committee on Finance. He also prorogued Parliament in order to avoid shedding light on the murder of Marylène Levesque, who was killed by a violent repeat offender who had already killed before. Let’s be clear: The government alone is responsible for the suffering of those who wish to receive medical assistance in dying.

The problem that we are still dealing with today has to do with Bill C-14, which was very flawed when it was passed. On February 6, 2015, in Carter, the Supreme Court of Canada struck down some provisions of the Criminal Code that banned certain people from accessing medical assistance in dying. The Supreme Court of Canada found those provisions to be unconstitutional because they were not consistent with section 7 of the Canadian Charter of Human Rights and Freedoms, namely the principle of liberty, which guarantees a person’s right to make fundamental personal choices without interference from the state, and the principle of security, which guarantees the right to control one’s bodily integrity without interference from the state. The Supreme Court of Canada did not focus the debate on people whose death is reasonably foreseeable or people suffering from degenerative illnesses.

Following the Supreme Court of Canada’s decision, the Special Joint Committee on Physician-Assisted Dying, which was made up of MPs and senators, made some rather clear recommendations in its February 25, 2016, report entitled Medical Assistance in Dying: A Patient-Centred Approach. It includes the following recommendations, and I quote:

RECOMMENDATION 2

That medical assistance in dying be available to individuals with terminal and non-terminal grievous and irremediable medical conditions that cause enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

RECOMMENDATION 3

That individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition.

These recommendations were made five years ago, and Justin Trudeau’s government has yet to follow them. I’m afraid that the argument of the Minister of Justice, who is criticizing the opposition by claiming to want to reduce people’s suffering, is coming back to haunt him.

In 2016, we already knew that the eligibility criterion defined as “naturally foreseeable death” in Bill C-14 would be found unconstitutional by our courts. The government disregarded the committee’s recommendations by sadly choosing to prolong extreme suffering for people with severe disabilities, in obvious violation of section 7 of the Canadian Charter of Rights and Freedoms.

We senators, however, did our homework. Our former colleague, Senator Joyal, proposed an amendment to Bill C-14 that would eliminate the naturally foreseeable death criterion. This amendment was rejected by the other place. I still remember the then justice minister, the Honourable Jody Wilson-Raybould, who at the time said she believed that Bill C-14 was constitutional, as her successor is now claiming about Bill C-7. They both made the same statement, and we will no doubt end up with the same outcome.

However, three years later, two people with severe disabilities, Nicole Gladu and Jean Truchon, had to take their fight to court to make the government do its homework even though Justin Trudeau’s team already knew the measure was unconstitutional. As senators, we did our job by warning the government about the constitutional problem, but the government chose to ignore that warning.

Just as I said upon leaving the Senate chamber in June 2016, here we are five years later in the same situation as when the same government decided not to appeal a superior court decision. Instead, it decided to introduce another bill that includes yet another unconstitutional and discriminatory provision: the exclusion of people suffering from serious mental illness. That was the elephant in the room that we weren’t afraid to talk about during the Legal and Constitutional Affairs Committee’s Bill C-7 pre-study meetings.

Honourable senators, I predict that Bill C-7 will suffer the same sad fate as Bill C-14.

Even more surprising are the arguments for justifying the exclusion of mental illness from the bill. It seems that the government did not have enough time to make a decision on this important aspect of the bill. We do know that there is no consensus within the scientific community. If this is the case, why doesn’t the government take more time to study the issue over the next few months? Study of Bill C-14 will begin in a few weeks, which leaves us a few months to decide on the issue and gives the government enough time to introduce a properly drafted bill on MAID that will be constitutional and will not exclude any individual wanting to access this right.

I question the introduction of this bill because we will be simultaneously working on reviewing Bill C-14 and its new version, Bill C-7, to come to the same conclusions. This seems like an inefficient and unnecessary exercise to me, because we already know from our experience with Bill C-14 that Bill C-7 will be challenged before the courts and that the government will have to come back with a new response. It is unfortunate that ever since Carter in 2015, five years ago now, we have failed to faithfully respond to the Supreme Court directive on MAID. Why then should the Senate adopt the principle of a bill that will go down the same road as the previous bill, involve lengthy parliamentary work and make us waste valuable time?

It is not hard to imagine that people living with mental health issues will have to fight in court to challenge this exclusion in the legislation on MAID. This could force some people to turn to suicide to end their suffering, since they will not be able to use the legislation to die with dignity.

That was actually one of the arguments raised by the Supreme Court of Canada, which found in Carter that if the government were to deny access to medical assistance in dying, it could cause patients to commit suicide, violating the right to life in section 7 of the Canadian Charter of Rights and Freedoms. Sadly, we already know that many people have since chosen to commit suicide.

I’d now like to return to an important point raised by Stéphane Beaulac, professor and legal expert, in his testimony during the pre-study by the Legal and Constitutional Affairs Committee.

Mr. Beaulac presented an institutional argument, namely, respectful dialogue between the legislative power and the judiciary. According to Mr. Beaulac, the ruling by Justice Baudouin of the Quebec Superior Court in Truchon should not have led the federal government to respond as hastily as it did with Bill C-7. I support that argument, because I think the government also could have appealed that ruling. If it had taken the matter to the Supreme Court of Canada, the highest court in the land could have ruled on this issue and the government could have then come back with a more in-depth analysis.

Mr. Beaulac also pointed out that legal vacuums have always existed in Canadian law and these voids are not a significant issue. On the contrary, they make it possible to have a more pertinent legal discussion among the provinces.

I fully concur with him. By applying pressure to pass the bill, the government has raised fears among all professional bodies that are directly or indirectly concerned with medical assistance in dying. During our week of pre-study on this issue, I listened carefully to the witnesses and I felt that most stakeholders were opposed to or had misgivings about this new law. After hearing from many witnesses, we did not arrive at a consensus and we are more divided than ever on the issue.

Apart from the constitutional argument, the bill has other flaws that my colleagues have already spoken about in the week of pre‑study and in different speeches.

The Hon. the Acting Speaker
[19:25]

Senator Boisvenu, your time is up. Would you like another five minutes?

Senator Boisvenu
[19:25]

Three minutes, please.

The Hon. the Acting Speaker
[19:25]

Is leave granted, honourable senators?

Senator Boisvenu
[19:25]

Thank you.

For example, a number of concerns were raised about the new category of safeguards that apply to people whose natural death is not foreseeable. There is no consensus around the government’s 90-day waiting period. The same goes for people who cannot provide final consent because they are unconscious. The government has provided no real answers to these questions.

Two other issues arose during the committee’s pre-study. First, there is no clear definition of how a patient and a practitioner should discuss the MAID option. Second, access to palliative care is problematic in some parts of Canada. Government ministers did not seem to be in agreement on these issues and were unable to provide detailed explanations relating to these issues. The Minister of Health said that her government transferred huge sums of money to the provinces for these services, but if not for the pandemic and the billion-dollar dance, we would still be where we were in 2016.

The last point I want to make has to do with people with disabilities. Many concerns were raised about expanding access to medical assistance in dying to these people. What is really striking is that most of the testimony supported the finding that not enough consultations were held with disability advocacy organizations.

In summary, I think that Bill C-7 is flawed, imperfect and unconstitutional. It raises serious concerns and contains a discriminatory clause. As with Bill C-14, it is clear that, when Bill C-7 passes, it will be challenged in court. Unfortunately, once again, many people stand to suffer because of this new bill.

Honourable senators, if this bill is passed as it now stands, the government is going to have to redo its homework in the coming years. In the meantime, we already know that far too many people will continue to suffer and will suffer even more given the consequences of Bill C-7, including people with degenerative mental illnesses. Let’s not forget that people who are mentally ill and whose death is naturally foreseeable currently have access to medical assistance in dying.

Honourable senators, since 2016, I have been working with families whose loved ones starved themselves to death because Bill C-14 ignored their pleas.

Honourable senators, I spoke with a mother who resigned herself to accompanying her 34-year-old son to Switzerland, paying more than $40,000, so he could follow through with his decision to put an end to his suffering with dignity, since Bill C-14 ignored people who are suffering.

Honourable senators, Bill C-7 will leave these people to fend for themselves, sacrificing them to political correctness and partisan stubbornness. The last thing I want is to hear more of the kind of poignant and painful testimony that we have been hearing for the past four years. I would like people who are suffering to be allowed to die with dignity, surrounded by their families, because that right is recognized by the Supreme Court of Canada.

In conclusion, I want to thank all those who shared their often difficult stories. They deserved to be listened to and to be treated with the utmost respect.

Thank you very much.

Hon. Renée Dupuis
[19:29]

Honourable senators, I rise today to speak to Bill C-7, a bill that affects us all directly as living people who are well aware that our death is inevitable.

Bill C-7 proposes some amendments to the Criminal Code with respect to medical assistance in dying. This bill was passed by the House of Commons on December 10. The Standing Senate Committee on Legal and Constitutional Affairs finished its pre‑study of the bill while debate was under way in the House of Commons and tabled its report in the Senate on December 10, having heard from 81 witnesses over a week of hearings. The preamble of the bill presents Bill C-7 as a response to the Truchon decision rendered over a year ago, in October 2019.

I would remind the chamber that this ruling nullifies parts of Quebec Act Respecting End-of-Life Care as well as parts of the Criminal Code. The Truchon decision did not come out of nowhere. It is part of a profound social reflection on medical assistance in dying that has been formally under way in Quebec since at least 2009. A bipartisan parliamentary committee met in various cities in Quebec to discuss this sensitive issue from 2009 to 2012.

In his testimony before the Senate Committee on Legal and Constitutional Affairs on November 27, 2020, Geoffrey Kelley, the chair of that committee and a former Quebec cabinet minister, emphasized the extensive “public education” efforts undertaken by the committee that he said were instrumental in building a social consensus on respect for individuals who decide to seek MAID.

In 2009, the Quebec bar created a working group at the request of the Collège des médecins du Québec, of which I was a member. After months of joint work, the Quebec bar submitted a brief to that parliamentary committee that states, and I quote:

The introduction of the Quebec Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms into our law has had a significant impact on the individual’s right to make decisions about their body.

The Quebec bar also noted the following:

In Morgentaler, the Supreme Court of Canada defined the right to the security of the person, in addition to developing the right to freedom and dignity, thereby considerably expanding the individual’s right to self-determination and the right to control their own body and life according to their own values, particularly with regard to decisions that have a great personal impact on them.

The Quebec bar then added this:

The sanctity of life, which has always been the basis for banning euthanasia or assisted suicide, is a concept that has evolved in relation to the expansion of the individual’s right to self-determination.

In the current state of the law, the state’s interest in preserving life becomes less prominent and gives way to the right to self-determination at the end of life, when an adult has the right to express their wishes.

I remind senators that this was written in 2010.

The Quebec legislation that followed in 2014 clearly saw medical assistance in dying as one of the steps in the continuum of care provided to patients in the health care system, which is a provincial jurisdiction. A comprehensive enforcement framework was included in the act itself, including regulations, directives, practice directives and the creation of a commission to oversee end-of-life care. Statistical data and research have enhanced knowledge about these issues. For example, I will mention just one report published recently, in November 2020, by the Association des psychiatres du Québec on medical assistance in dying for people with mental health issues. The Quebec law therefore applies in parallel with the sections of the Criminal Code concerning medical assistance in dying that we are being called upon to amend with Bill C-7.

The report that the commission on end-of-life care released in April 2019 concludes:

Some of these eligibility criteria and safeguards are perceived by many as being too restrictive and as infringing on the self-determination of people at the end of life. That is why public pressure supports an expansion of the act.

It came as no surprise that in its brief on Bill C-7 submitted to the House of Commons in February, the Quebec bar stated that:

. . . the inclusion of the 90-day requirement for eligibility for medical assistance in dying is highly problematic, as it creates several layers of eligibility for MAID: the first, whether the applicant’s death is reasonably foreseeable, and the second, whether incapacity stems from the natural progression of the illness.

In this brief, the Quebec bar reiterated an argument it made in the debates on Bill C-14 in 2016, that the other criterion under paragraph 241.2(2)(b), “an advanced state of irreversible decline in capability,” should be abolished because it goes against the Carter decision made by the Supreme Court in 2015.

It is important to remember that the two plaintiffs, Jean Truchon and Nicole Gladu, had severe disabilities and felt that their medical conditions caused them intolerable suffering. These two people obtained a ruling that struck down the “reasonably foreseeable natural death” criterion in the Criminal Code as well as the “end-of-life” criterion in the Quebec law because both provisions infringed on their Charter rights to life, liberty and security of the person and to equality, and those infringements could not be justified under section 1 of the Charter.

I should point out that the Truchon decision is based directly on the findings of the 2015 Supreme Court of Canada decision in Carter. The Truchon decision struck down the sections in question in the two statutes, while granting the federal and the Quebec governments a suspension period so they could amend their respective laws, if they deemed it necessary. Furthermore, the decision granted a constitutional exemption to individuals who requested MAID during the suspension period. The decision was not appealed by either the federal government or the provincial government.

I remind senators that the Supreme Court used the following criterion to strike down the sections of the Criminal Code:

 . . . insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

In so doing, the Supreme Court left the decision to make a request for medical assistance in dying to the sole discretion of the person who is suffering, without any outside interference. Bill C-7 nullifies the effect of Truchon because it maintains the criterion that was struck down in that decision, namely that natural death must be reasonably foreseeable, while creating a distinction, with no medical or legal basis, based on the progression of the disease. What is more, that distinction creates even more barriers for people whose natural death is not foreseeable. Access to medical assistance in dying should not be conditional upon the reasonable foreseeability of natural death or the nature of the illness. The defining issue when it comes to accessing medical assistance in dying should be the ability to consent at the time the request is made, and any safeguards should be focused on that aspect of the issue. Given the increased life expectancy in our society and the availability of a wide variety of drugs and treatments to extend the lives of people who are sick, free and informed consent must involve giving people the opportunity to give advance directives on their end of life.

The federal government has filed three motions requesting the extension of the suspension granted by Truchon. The most recent one was filed a few days ago and requests an extension until February 26, 2021, because the government believes that debates on this bill could not be completed before the December 18, 2020, deadline. In fact, the Senate is just beginning its study after the House of Commons passed the bill. Moreover, the Senate announced that it would propose amendments, which will have to be passed by the House of Commons, where appropriate.

I must say that the federal government did not have to file this last motion for an additional extension. It could have decided, as early as October 2019, to let the Quebec Superior Court ruling apply within Quebec while letting other legal proceedings in the other provinces run their course.

When the federal Minister of Justice was questioned on this topic when he appeared before the Standing Senate Committee on Legal and Constitutional Affairs as part of its pre-study of Bill C-7, he said that the government wanted to ensure that the Criminal Code was applied consistently in Canada. However, some of the witnesses who appeared before the committee indicated that the Criminal Code is not currently consistently applied and that doesn’t in any way call into question the integrity of the application of the Criminal Code. In other words, if the recent request for an extension is refused, the Quebec Superior Court ruling will continue to apply to Quebec only.

There is no scientific reason to justify the creation of additional obstacles for people whose death is not foreseeable. Many witnesses from the medical community indicated that this concept is vague and ambiguous and therefore cannot be regulated, while other witnesses insisted that it was impossible to predict the evolution of physical and psychiatric illnesses. Patients have been able to refuse treatment for many years. We have learned to assess the ability to refuse treatment. The difference with medical assistance in dying is that the patient is refusing to give the medical community the power to decide their last medical treatment.

Now we’re seeing loved ones who received MAID or who were denied it. These people are parents, uncles, aunts, brothers, sisters, and friends. We can’t pretend not to realize that we are talking about our own life and death here. We want to have a say in what we consider to be a meaningful life.

In closing, colleagues, I want to stress that the parliamentary review the federal government made law in 2016, the review that should have started in June, must be launched without delay. That review provision gave Canadians legitimate expectations. The government needs to explain to Parliament why it failed to abide by that section of the 2016 act. Thank you.

The Hon. the Acting Speaker
[19:43]

Would Senator Dupuis take a question?

Senator Dupuis
[19:43]

Yes, if there is consent.

Senator Bellemare
[19:43]

Senator Dupuis, I congratulate you on your speech, which contained many very interesting points. I would like to ask you how you see the issue of medical assistance in dying in relation to the individual.

Listening to you, it’s not clear to me whether you consider medical assistance in dying to be a health problem. In your opinion, is the issue of medical assistance in dying simply an individual matter for an individual who has the right to decide on his or her end of life, or is it a right framed within the context of the evolution of his or her state of health?

Senator Dupuis
[19:44]

Thank you for the question, Senator Bellemare. I would say in response that I made a point of referring to the social consensus that has emerged in Quebec.

The Hon. the Acting Speaker
[19:44]

Senator Dupuis, your time has expired. Would you like five more minutes?

Senator Dupuis
[19:44]

If the Senate agrees, yes.

The Hon. the Acting Speaker
[19:44]

Is leave granted, honourable senators?

Senator Dupuis
[19:44]

I want to talk about what one of the witnesses described as the process of public education and collective social reflection on the issue of medical assistance in dying. Views on this issue have changed significantly in response to scientific advances that prolong the life of sick patients as well as the shift in authority over health. Authority has shifted from the physicians to the patients. This social evolution has taken place over the past 30 years.

Everyone used to believe that if you were ill, you would place yourself in the hands of the medical authority. Once the charters were introduced, the balance shifted. We now believe that it is obvious that, within the wide range of health care services available, medical assistance in dying enters into the context of human life starting from the moment you become old and sick, lose your cognitive abilities or have an accident.

This is a matter related to health care, and that was the intent of Quebec’s law. The notion of medical assistance in dying is part of a continuum of care, and the authority to decide at what point life loses its meaning has reverted to the individual who is suffering. That is what the Supreme Court ruled when it recognized these rights.

Yes, this is about individuals, because after all, we are also talking about individual lives.

Senator Bellemare
[19:46]

If I’m not mistaken, you’re making a distinction from the point at which MAID is connected to intolerable suffering and an illness. We are not talking about assisted suicide, which is completely different, and that’s what I wanted you to clarify in response to my question. Medical assistance in dying is connected to suffering from an illness that cannot be alleviated, and not to an individual’s choice to end their life.

Senator Dupuis
[19:47]

I would add that before this shift happened, the doctor had the authority to administer terminal sedation, but now that authority has reverted to the patient who feels that their life has lost all meaning, that their suffering has become intolerable and that they will not let doctors decide for them when the situation becomes intolerable.

Hon. Michael L. MacDonald
[19:48]

Honourable senators, I will also speak to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). I want to commend all of you who have participated in this debate. This is a most serious matter, and I appreciate the thoughtful and insightful perspectives I’ve heard from all sides of this issue. I also want to thank those who have written to me, individual messages about Bill C-7, particularly those Canadians living with severe disabilities. Their counsel on these matters is both valuable and timely.

I’ll focus my remarks today on two issues arising from the bill which are in some ways distinct but also somewhat interrelated. The first issue has been discussed already, but it is too important to ignore. The second has not been properly addressed at all, in my opinion.

The first is the impact this bill will have on vulnerable communities in Canada, particularly our disabled communities. As Krista Carr, Executive Vice-President of the Council of Canadians with Disabilities has said:

. . . Bill C-7 would allow people with a disability to have their lives ended when they are suffering but not dying . . . . We’re told Canadians want this, yet every national disability organization is opposed.

This is a very troubling thing to hear. It should be seen as the red flag that it most surely is. What is being proposed is to give people with disabilities the right to medical assistance in dying when there is currently no right to adequate support for persons with disabilities in Canada.

Witnesses from the disabled community appearing before Senate and House committees have told us that the very inclusion of disability as a condition warranting assisted suicide is tantamount to declaring that a disabled life is a life not worth living. I fear that, as a society, we are compounding that when we provide inadequate social and health care support to vulnerable communities.

As witnesses have told members of Parliament, we risk pushing these individuals toward a decision where ending their lives is preferable to living. In this regard, Ms. Carr also told the Senate Legal Committee that 75% of persons with disabilities are unemployed, they are three times as likely to be living in poverty, four times as likely to experience violence and many are housed in long-term care facilities or other institutions where community and personal support networks may be weak or almost non‑existent. We have simply not thought enough about the implications of this, nor do we have any clear data on how MAID in other jurisdictions impacts vulnerable communities.

For a government that talks as much as this one does about the United Nations, I wonder if the Prime Minister and his cabinet have ever read the United Nations Convention on the Rights of Persons with Disabilities. If they had, they would find that Article 19 states:

States Parties to the present Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community . . . .

They would also find Article 25 of the convention related to health, which reads:

States Parties recognize that persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability.

I know that all governments, as well as our health authorities, hospitals and medical practitioners, seek to do their best in all of these areas. I also know that individual families seek to do their best in helping family members who may be disabled. But are we really in a position to say that, collectively as a society, we are living up to our obligations to the disabled community to a level where we can now, in good conscience, offer medical assistance in dying in a manner in which it will not impact persons in vulnerable communities disproportionately? I cannot, in good conscience, confirm that I believe that this will be the case.

This brings me to the second issue that I wish to address. As a society, we are plunging headlong into greatly expanding access to medically assisted death in Canada, yet we know very little about how it is actually being implemented. According to Health Canada, between December 2015 and the end of October 2018, the official tally of medically assisted deaths in Canada was 6,749 people. Amy Hasbrouck, board member and director of the organization Toujours Vivant, told our Senate committee that those numbers may now total nearly 20,000 individuals.

In the examination of health care cost, the Parliamentary Budget Officer has estimated that the total of MAID deaths in Canada will likely be around 6,500 in 2021 alone, and that the legislation we have before us will increase that by an additional 1,164 people per year. That will be close to 8,000 people per year, at a minimum. I fear that these are conservative estimates when we look at where other jurisdictions find themselves. In the Netherlands, for instance, a report by The Guardian newspaper suggests that well over one quarter of all deaths in that country were medically induced as of 2017 — a figure that includes those who died by suicide, euthanasia or palliative sedation. This is certainly indicative of a slippery slope.

As we incrementally expand the scope of MAID in Canada, we should not delude ourselves into believing that we are not on the same course. The Minister of Justice has, essentially, admitted this much before the House and Senate committees, yet I cannot remember legislation with such a significant set of consequences that had been embarked upon as casually and without adequate scrutiny as Bill C-7. We know very little about how MAID is currently being implemented, who is receiving it and how it is likely to impact vulnerable communities.

For instance, there is very little in the public eye concerning the protocols that govern the actual implementation of medically assisted dying in Canada. One has to search for such protocols. For example, we didn’t find the MAID proposals for the Northwest Territories online, but the document itself reads, “for internal use only, not to be publicly distributed.” Why should that be the case for a practice that has now been applied to thousands of people in Canada on an annual basis? Perhaps it is because aspects of this practice are unpleasant and disturbing?

An article authored by several medical practitioners in the medical journal BMJ Open found the following:

Bill C-14 legislated eligibility criteria under which patients could receive MAID, but provided no guidance on the clinical aspects of providing aid in dying. Critical clinical issues remain unaddressed, such as which pharmaceuticals, doses and routes of administration should be used to cause death; the roles, scope of practice and training requirements for healthcare professionals . . . .

. . . it is not possible to determine which medications or combinations of medications are most effective and result in the fewest complications and least distress for patients, providers and families.

There is much that we don’t yet know, and there is much that medical practitioners are still having discussions about. But one can determine that in Canada several jurisdictions appear to be using multiple drug protocols. An article by several practitioners of the College of Family Physicians states that in Canadian provinces:

The most common IV protocol is 10 mg of midazolam, then 1000 mg of propofol, followed by 200 mg of rocuronium. It is important to ensure that the patient is in full coma before giving the muscle relaxant. . . The IV route takes 5 to 10 minutes to complete . . .

Concerning the use of midazolam specifically, the Medical Assistance in Dying Protocols and Procedures Handbook Comox Valley notes that it “works as a sedative with virtually no side effects.” However, the same protocol also states that: “It can cause restlessness. If so, give Propofol immediately.”

Potential restlessness in response to the use of midazolam is perhaps putting it mildly, as this drug has been at the centre of a number of court cases in the United States concerning the application of the death penalty. In 2014, an offender was executed in Ohio using the three-drug protocol using midazolam. The individual’s death in that case took 24 minutes, including 10 to 13 minutes when he was said to have been gasping for air. The British Columbia protocol acknowledges that:

Cardiac arrest is anticipated in 5 minutes but may take as long as 20 minutes . . .

Evidently, that length of time is legally problematic in the United States when it comes to the rights of violent, condemned criminals, but it has barely been discussed in Canada at all, even though it has already been applied to thousands of people.

The allegations of problems with midazolam have meant that several states, including Ohio and Florida, have abandoned it in their execution protocols. In 2015, the United States Supreme Court rendered a decision in the case of Glossip v Gross. The case involved an inmate in Oklahoma Richard Glossip, who challenged the state’s use of midazolam in his execution protocol in response to an allegedly botched execution in the state using that drug the year before. Although in a narrow five-to-four ruling, the court found against the defendant, a strong dissent was registered by Justices Sotomayor, Breyer, Kagan, and Ruth Bader Ginsberg, specifically noting serious potential problems with the use of midazolam. The dissenting justices argued:

. . . constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail . . .

I cannot find any similar discussion in Canada concerning the use of this drug, nor indeed any serious scrutiny by outside bodies of current Canadian MAID protocols. So it appears that we know quite a lot about botched executions in the United States, but we know almost nothing about medically assisted deaths that may have been botched in Canada, even though the overall numbers of MAID deaths that we are talking about in Canada are exponentially higher than those in the United States. That is perhaps not surprising given privacy concerns. Colleagues, I respectfully suggest it should be worrying from a policy-making perspective.

In conclusion, I want to state that I’m not a medical expert. I am certainly not an expert in the use of midazolam, nor am I an expert on medical protocols, but you don’t have to be an expert to be extremely concerned about the absence of open discussion about these matters in Canada. There is a lack of transparency in how MAID is being implemented and about whom it is likely to impact most. Despite this, the government is now proposing to expand the scope of MAID even further. The government promised us a five-year review when Bill C-14 passed in the last Parliament, and now the Quebec court makes a legal decision and issues a timeline directed to the federal government.

The federal government could have referred this to the Supreme Court, but instead, they turned around and created what I truly believe to be a poorly constructed response. I simply cannot get past the negative aspects of this approach, potential social downside and the individual marginalization that I believe emanates from Bill C-7.

I said during the debates on Bill C-14 that I don’t trust the state with the lives of people. I still maintain that view. If I err in my conclusions regarding Bill C-7, I prefer to err on the side of life and the right of the individual to life.

Issues of life and death require serious scrutiny, and that should occur before we agree to expand the scope of MAID even further. We should do the review in 2021 as needed and as promised, then move forward after a full and comprehensive view of Canada’s past five-year experience with MAID. The government could have and should have kept this commitment.

I ask the government to re-evaluate its approach. I cannot in good conscience vote for this bill, at least not in its present form, and I strongly encourage honourable senators to err on the side of the most vulnerable in this instance. Thank you.

Hon. Leo Housakos (The Hon. the Acting Speaker)
[20:02]

Would Senator MacDonald entertain a question from Senator Lankin?

Senator MacDonald
[20:02]

Of course.

The Hon. the Acting Speaker։
[20:03]

 Senator MacDonald, would you be asking for an extra five minutes to entertain the question?

Senator MacDonald
[20:03]

If the Senate wants to give it to me, certainly.

The Hon. the Acting Speaker։
[20:03]

 Honourable senators, are we acquiescing to five more minutes?

Hon. Frances Lankin
[20:03]

Thank you, Senator MacDonald. You have raised an area and an issue that we have not heard a lot about and that we have not studied. I am one who tends to agree that the review should have taken place before now. I am also one who argued on Bill C-14 that the reviews with respect to advance directives, mature minors and sole mental illness should have moved ahead, not just with the academy’s research study but with expert panels, bringing forward recommendations with information. I am also aware that these things evolve.

You have now raised the issue of the drug protocols that have been in place. I’ve been following the midazolam story in death penalty executions in the U.S. I am horrified by what you have told us. I would like to understand more of that, and I surely hope that is a very serious part of our Bill C-14 review, the medical assistance in dying review, because it is larger than just Bill C-14.

I listened to your speech, and did I hear that you could not find protocols in — I’m sorry, it may have been the Northwest Territories, I’m not sure, and you were reading to us from B.C. I missed if you had references to other provinces or whether they too were not available to the public. I’m just wondering if you could review that for us and if, in fact, you’ve had any opportunity to speak with health researchers. I understand you might not have, but if anyone has begun to look at these protocols and if they’ve been refined over time, or if this is a serious gap, not just in parliamentary review, but in medical science review.

I would appreciate your thoughts on that. Thank you again for raising these important issues.

Senator MacDonald
[20:05]

Thank you, senator. Like a lot of people, I wasn’t even going to speak to this issue initially. I have to confess that the correspondence I received, particularly from disabled people, opened my eyes to take a second look at this. They are so vulnerable. I started looking into it more, and I said, no, I want to speak to this.

It was really only after I decided to speak to it that I realized how little evidence there is out there that we can tap into in regard to the protocols in this country. There is almost nothing out there in public that I can track down or that I have tracked down in a short period of time.

We have always been very respectful and trustful of the medical profession in this country. It is part of our culture. We think the doctors will take care of it; they know what they are doing. But we really don’t have a set protocol. I don’t think we do.

Again, if they are having so many problems with a protocol in the United States, with a relatively small group of people who are having this drug put into their system — we know that the usage of it in this country with medically assisted suicide or death is much greater exponentially — I wonder how much we’re missing, how much we’re not being told. These are things worth exploring.

Again, I think we should err on the side of caution on this stuff, and it is why I put it in my speech. I don’t think we have talked about it enough. It is the one thing I identified that I thought had to be discussed more thoroughly and more publicly. Those are my thoughts on that.

Hon. Brent Cotter
[20:07]

Honourable senators, let me begin by making one or two preliminary observations. I’m new to the Senate still, still the most junior senator, and there have been times when I have wondered why I came. I would say in the last little while, and in the debates and consideration of this question, I now feel I know why I am here and why I am honoured to be here with you. This has been a heartfelt, rich conversation, deeply held by many of us, including myself.

My sense is that we are wrestling with people’s suffering and vulnerability, and trying to find the best way through. The big questions — and this is in part legal — are what are the boundaries that we as a society should place on the autonomy of others who wish to die, and is it the case that that autonomy can or cannot be genuinely exercised by some in our society? We’ve discussed that already. I’ll speak a little bit to that in my formal remarks.

There are three topics I would like to address, in part legal and in part, I hope, humane. The first is what I think is the unfortunate decision of the Government of Canada not to have stated a reference to the Supreme Court of Canada with respect to many of the complicated legal issues associated with medical assistance in dying, some of which are on the table for us in Bill C-7.

The second topic is my concern regarding the constitutionality of having excluded mental illness as the sole underlying medical condition for access to MAID.

The third topic is the implications, more the social implications, of making medical assistance in dying available to people who suffer grievously, but whose death is not reasonably foreseeable.

Senator Gold acknowledged in his remarks a few days ago that Bill C-7 will generate a series of legal and constitutional issues and challenges for years to come. Some will be generated by this bill, from different communities of interest who have been excluded from access, or for some who, from their perspective, are made more vulnerable by the legislation. In some cases, it will be people whose sole underlying medical condition is mental illness. Some will think the safeguards are too strict, and others will think they are not strict enough.

We will be flooded with issues in our courts.

Going outside the boundaries of Bill C-7, other questions will arise, some of which have just recently been spoken to, including the issue of advance directives; others are beyond my ken to understand. Senator Gold suggested that the advantage of Bill C-7 is that it will clarify things for people and make much-needed services available in a timely way. In part, he is right, but for the many people who will be excluded from access to dying with dignity, their only option will be to pursue constitutional challenges. In doing so, they will be required, at their own enormous financial and emotional expense, to have to litigate this matter — for years, if these cases go to the Supreme Court of Canada.

As someone who has spent at least part of his career in and around constitutional references, the presentations to the courts that are being crafted and their arguments in the court, I say to you that all of these questions, in a timely and effective way, could have been presented to the Supreme Court of Canada in ways that would produce timely and definitive guidance and in ways that would minimize the burden on individuals who are surely entitled to know where they stand on matters of such enormous import.

If anything, the choice not to pursue a reference will leave more people in tragic circumstances and more people waiting for a resolution of their rights. This, I think, was a choice that was an unfortunate one, but I would say this: Even if the bill passes, as I expect it will — perhaps with amendments — the reference option is still available.

My second point concerns the exclusion of mental illness as the sole underlying medical condition from access to MAID. Senator Gold, speaking on behalf of the Government of Canada, argued that while there is debate about the subject matter, the Government of Canada’s view is that this provision — excluding mental illness — is constitutional. I want to take issue with that view.

I will not attempt to recite Senator Carignan’s incisive legal analysis of the court decisions on this topic, but I will come at it from a slightly different point of view. There is, in fact, a meaningful judicial finding that mental disorder as the sole underlying medical condition qualifies under the MAID regime as articulated in the Carter case. Senator Gold didn’t refer to this case, leaving it to a category of so-called Constitution exemption cases, as if they should be disregarded.

This is an inaccurate characterization. The case is Canada (Attorney General) v E.F. It was decided specifically in relation to the criteria decided by Carter. E.F. was a woman suffering exclusively from a psychiatric disorder and experiencing excruciating pain and suffering, unexplainable on any physiological basis. That was not disputed by anyone. She had suffered for years, but her death was not reasonably foreseeable. This was at a time after Carter had been decided by the Supreme Court, and therefore the governing framework, but it was before Bill C-14. It was during a period when the Carter principles were applicable.

Here is what happened. Upholding the trial judge’s decision, a unanimous Alberta Court of Appeal, composed of three of their most experienced judges — and if you are interested, those judges were appointed by various federal governments — were unanimous in their explicit application of Carter to E.F.’s circumstances and granted her wish to die with dignity under the MAID regime.

All of the Government of Canada’s arguments were rejected by the Court of Appeal, and the Government of Canada did not appeal.

What happened next? Bill C-14 was introduced to put in place limitations in terms of access to MAID that require the requester’s death to be reasonably foreseeable — you know about that; it came through here before I came here. This didn’t specifically exclude people like E.F. from MAID, but it did effectively do so because mental illness, in its practical effects, might produce terrible suffering but, to be fair, it is a relatively rare case where mental illness is the sole underlying medical condition that brings a person close to death.

Then, as a result of Truchon, the requirement that death be reasonably foreseeable was constitutionally rejected. This made it possible for people like E.F., suffering grievously from a mental disorder but whose death was not reasonably foreseeable, to once again be entitled to MAID.

Now, with Bill C-7, the Government of Canada is making a decision to remove access for those people whose sole underlying condition is mental illness, an entitlement that was established by the Alberta Court of Appeal and implicitly upheld in Truchon, as we heard from Senator Carignan.

So let’s be clear: The bill explicitly takes away a right established in the courts. Indeed, the Government of Canada has adopted one outcome from the Superior Court of Quebec — Truchon — and in the same breath, with this legislation, has ignored and chosen to overrule the unanimous decision of an appellate court in Alberta that provided that constitutional right to people.

On this point, I’ve spent time thinking about the constitutionality of a provision and a senator’s responsibilities. My conclusion is that if a senator reaches the view that a provision of some import in legislation is unconstitutional, that senator owes a duty to the Constitution not to support it. I need more information and advice on this question, but I’m leaning toward the view the exclusion of mental illness in Bill C-7 is unconstitutional, which leads me toward supporting an intelligent amendment that brings mental illness into the legislation and into the MAID regime.

My third point refers to death not being reasonably foreseeable, but less the law and more the humanity of it. What comes to mind for me is the Simon & Garfunkel song “Bridge Over Troubled Water.” Some of us are the right age to know Paul Simon’s music. You will recall the line, “When you’re down and out/When you’re on the street” et cetera — I don’t remember it all, but you get the point. Simon & Garfunkel sing about building a bridge over troubled water.

What we need to be doing here is building not the bridge that we’re talking about but another bridge — a bridge to dying with dignity; a bridge to try to give people a chance to live healthier, more fulfilling lives, even when they are vulnerable, disabled and hurting.

I want to thank Paul Simon for that, but I also want to thank Senator Seidman for pointing me to the work of the parliamentary committee on MAID, which inspired me to stand up and speak this evening. I get nervous, because I know there are all kinds of traditions, and if I cross the line, Senator Housakos or Senator Plett will gently help me and correct me. But I thought I would stand up anyway and take the chance.

On balance, the provisions related to a person’s death not being reasonably foreseeable are probably constitutional, but what I really want to talk about is autonomy — autonomy to make the choice and autonomy to be able to make good, honourable choices.

This is deeply personal to me, and I want to start there. When I was a kid, 7 years old, my family moved from Kamsack, Saskatchewan, to Moose Jaw, Saskatchewan. Senator Batters knows Moose Jaw and was pleased to hear I am from there. My father gave up a successful dentistry practice in Kamsack and his position as mayor of the town. His name was Wilfrid, which will give you a hint as to what sort of political orientation he had, for those of you remember or grew up with Wilfrid Laurier.

He took up a salaried position — I will need extra time, honourable senators.

Senator Cotter
[20:18]

He took up a salaried position with the Government of Saskatchewan as a dentist in Moose Jaw in what was then known as the Saskatchewan Provincial Training School. He was solely responsible for nearly 1,000 people at the training school, an institution for people with mental disabilities, some of themselves severe and profound.

My father loved his patients. He served as Santa Claus, about this time every year, for those residents. He had the physique for it, it turned out. Every Christmas morning for 10 years, I got up and went off to be an altar boy at Christmas mass, and then I came home to open Christmas presents with my brother and sister, and celebrate Christmas morning.

For every one of those Christmas mornings, my father disappeared for two or three hours. For the longest time, I didn’t know where he had gone. It turned out that he was going back to the training school, as it was then called, to be Santa Claus and serve breakfast to those thousand residents. Initially, I was hurt that he would abandon his family for those precious hours on Christmas morning, but I eventually came to understand and deeply admire his commitment to people who were much less well off financially, and in human and living terms, than we were. That understanding and care sticks with a person all of their lives.

Let me fast forward a couple of decades. I have a daughter Kelly whom I love dearly. She has intellectual disabilities. She’s a marvellous young woman. I hope you will get a chance to meet her when people can travel more freely. She lives in an assisted living community on Vancouver Island and is well supported there, and by her mother and me. We are fortunate to be comfortably off and committed to her happiness. We are confident that she will be able to have a rich, fulfilling life and able to make her own life decisions. But what I do know from these associations and her gift to me, really, is that there are many people for whom that autonomy is constrained. Some will argue that it is even absent.

I’m now coming to the point where I’ve heard many with respect to Bill C-7. I think Bill C-7 intends to and does provide autonomy of choice for citizens, and a set of circumstances related to their suffering. I support that autonomy, including its availability for people with disabilities and who are living in vulnerable circumstances. We have heard many heartbreaking stories.

Where this bill fails me, or at least the government’s commitment fails, is in terms of building that second bridge. I will be uncharitable to a couple of senators here, but I won’t say their names. I might get in trouble if I do. Senator Plett will jump up and defend them if I do.

The bill fails in the sense that it doesn’t build that second bridge of ensuring that the autonomy can be exercised in significantly more balanced, fairer and potentially less coercive circumstances. So I support the autonomy of availability, but I am desperately keen to see circumstances exist where that autonomy is exercised more freely. That’s where Senator Seidman’s inspiration helped me greatly.

This brings me to the reason why I decided to stand up and speak. I heard some senators’ remarks on this point, to the effect that these questions of living support, of mediating disability and vulnerability, are matters of provincial jurisdiction. I heard that from senators who inspired me to come and apply for the job in the Senate. I admire their views, but this point troubles me greatly. The point is: Ottawa proposes, the provinces dispose. It is a classic federal answer to Canada’s problems.

Ottawa does have the authority. Some of the provinces don’t like it. They don’t like the spending power. This is the power Ottawa has to spend money in areas of provincial jurisdiction.

We heard a few witnesses in the last couple of weeks testify before us — Canada research chairs in education, professors at universities — and their positions and their salaries are paid directly by Ottawa in areas of provincial jurisdiction. So the answer of “provincial jurisdiction,” as if that is the complete answer, is unacceptable in my view.

Ottawa can — wisely and in partnership with provinces, and in a way that respects their jurisdiction — achieve meaningful investments in this area to build that second bridge. Hiding behind the division of powers, rather than stepping up to the plate and investing so that our most vulnerable can live more fulfilling lives and make truly autonomous choices, and maybe the most important choice some will ever make — the choice to die — it is unbelievably important and concerning that we would dismiss it on a division-of-powers basis.

There are many mechanisms that Ottawa has available to achieve this in an engaged way with provinces and territories. Indeed, in my experience — and I spent 12 years struggling with this equation when I was a provincial deputy minister — Ottawa always finds a way if it is important enough. What could possibly be more important than to help the most vulnerable live as fulfilling a life as we possibly can, and help them to have the best possible circumstances if they choose to make such a heartbreaking choice that they wish to die? I respect that choice, but I think it needs to be addressed in a more fully framed life — whatever we can do.

I would go further and say that in this chamber each of us as a senator speaks — many of you eloquently — for a province or territory, but in this case I think we have to speak to our province or territory. When resources come available, as surely they must from the Government of Canada to address the most vulnerable citizens — both generally and in relation to these hard questions — we must insist to our province or territory that investments made for these very meaningful purposes, and for these very people, go to the people they are intended to help.

This leads me to my final point. The moral compass of a country is not determined by how many millionaires it can produce but how it treats its most vulnerable. On this score, generally yes, but in particular with respect to our most vulnerable citizens’ decisions regarding their lives and sometimes their dignified deaths, we must do better. Thank you.

The Hon. the Acting Speaker։
[20:26]

 Senator Cotter, would you entertain questions from Senator Batters and Senator McCallum?

Senator Cotter
[20:27]

As long as it is not about the podium and her wanting it back.

The Hon. the Acting Speaker։
[20:27]

 You have to request an extra five minutes.

Senator Cotter
[20:27]

Might I have another five minutes?

The Hon. the Acting Speaker։
[20:27]

 Honourable senators, are we agreed?

Hon. Denise Batters
[20:27]

Thank you very much, Senator Cotter. I want to ask a brief question about the Alberta E.F. case that you referenced.

When we were dealing with Bill C-14 in 2016, there was the E.F. case, which was an assisted suicide that had been carried out prior to Bill C-14 passing. I asked a question about it at Legal Committee because it was an extremely rare situation. The patient had a solely psychological and non-terminal illness, and it was an extremely rare psychiatric disorder.

Senator Cotter, did you know that in that particular case there were three doctors that approved this particular assisted suicide but only one of those doctors actually ever even saw that patient — the general practitioner, the GP? The psychiatrist who approved the assisted suicide only reviewed the file. The assisting doctor who was willing to do the assisted suicide never met the patient and did a consultation by FaceTime. This was pre-COVID, when FaceTime was a lot rarer. Did you know those particular facts?

Senator Cotter
[20:28]

Senator, let me offer a small viewpoint. I’m nowhere near being an expert on the medical side of the equation.

The question primarily relates to the framework, the safeguards and the boundaries that we put on the decision to make medical assistance in dying available. Respectfully, those are difficult and open questions. I’m not able to say, for example, how many doctors a person should see. I defer to many others who make that choice. But if the determination is that E.F. was entitled to medically assisted death, and I agree that it was an unusual circumstance, the point is that people who meet those criteria — mental illness as a sole underlying condition, suffering grievously and their death not being reasonably foreseeable — that category of person was authorized to be entitled to medical assistance in dying by the Alberta Court of Appeal.

I welcome your insights into what the guardrails should be, but if the guardrails are there and are met, it seems to me the right is established in law. Thanks.

Hon. Mary Jane McCallum
[20:29]

Would the honourable senator take a question?

Senator Cotter
[20:29]

I would be honoured to take a question.

Senator McCallum
[20:29]

Thank you, Senator Cotter.

I want to thank you for your powerful speech and to let you know that we are blessed to have you with us in the Red Chamber.

Senator Cotter, we have heard, a number of times already throughout this debate, reference to the fact that consideration should remain firmly on the principle of this bill. This is something I’m uncomfortable with, as I feel it is negligent to the fact that while the principle of the bill can be viewed plainly as text on paper, the reality is that Bill C-7 will lead to dire and critical human consequences and outcomes. Indigenous peoples of Canada are especially susceptible to the negative consequences that this bill could herald.

As has been indicated, this debate is on Bill C-7 and not Bill C-14, which I understand. However, if it were not for Bill C-14, Bill C-7 would not be in existence. I find it difficult to view consideration of Bill C-14 as beyond the scope and principle of this bill, as one gave birth to the other. There is an intricate link between the two.

In your expert and legal opinion, should senators not put equal consideration into the human part of the bill as opposed to simply focusing on the principle? If so, how would you envision marrying and balancing these two views? This siloed and, frankly, cold approach to considering the principle seems borderline inhumane. It is also an approach that has proven inadequate and ineffective when approaching relevant matters such as social determinants of health.

I would welcome and appreciate your insights into this matter. Thank you.

Senator Cotter
[20:31]

Thank you, senator. I’m not entirely sure of the question, but let me offer the answer I would like to give.

One of the arguments that was advanced in the last couple of days is that this bill is only an amendment to the Criminal Code, so let’s keep ourselves blinkered and focused on that. I accept that as a legitimate legal exercise. However, it is within the power of the Government of Canada to do more in one fell swoop than amend one piece of legislation; it could commit to spend money at the same time.

My argument is that we should be making meaningful investments that were celebrated by the joint parliamentary committee — as far as I could tell, made up of parliamentarians from this chamber and the other place, some of whom were members of the governing party. They called for meaningful investments in palliative care and living circumstances, and those should run in parallel with this bill, not left separately, with our fingers crossed that something might happen. Thank you.

Hon. Donna Dasko
[20:32]

Would the senator take another question?

Senator Cotter
[20:32]

I would be pleased to, if I have the time.

The Hon. the Acting Speaker։
[20:32]

 Maybe you could ask the chamber for five more minutes.

Senator Cotter
[20:33]

Could I have five more minutes to field a fascinating question from Senator Dasko?

The Hon. the Acting Speaker։
[20:33]

 The chamber is benevolent tonight.

Senator Dasko
[20:33]

The chamber is very nice tonight. Thank you.

Senator, you began your speech with comments about the boundaries of autonomy that we place on other people. You went on to say that the two pieces of legislation — Bill C-14 and now Bill C-7 — took away rights with respect to MAID that had been given to Canadians by the courts.

In your view, what limitations are there in this area? What has the court given to Canadians? And what limitations do you feel there should be with respect to MAID?

I listened closely, and this relates in some ways to the excellent comments from Senator Dupuis, who talked about the fact that we value autonomy and that this is a growing social value in our society that has been reinforced by the courts and so on.

One could argue that there should be no limitations. If we have autonomy, we should be able to access MAID at any time, in any condition, to control our lives. We should be able to say, “I need this now. Perhaps I shouldn’t even have to have a medical condition to receive MAID.” We could assert that arguments about autonomy could take us in that direction as well.

I look forward to your comments about that. Thank you.

Senator Cotter
[20:35]

All I can do is try my best. I think Senator Dupuis is correct in her observation that we have moved to a society that values, more than it used to, individual rights and the autonomy of individuals. That has been a big factor in the shift in medical assistance in dying.

This is a challenge for us. It is articulated in a constitutionally entrenched Charter of Rights and Freedoms that Canadians in vast numbers support.

If I can digress for a moment. I was once at a conference in Saskatoon, and Allan Blakeney — one of the premiers involved in the architecture of the patriation of the Constitution and the Charter of Rights — and I were discussing a question about the degree to which the courts have circumscribed the authority of Parliament and legislatures to make choices about their societies. It was observed that then Prime Minister Harper was frustrated about that, had made observations. I said to former Premier Blakeney, “What are your thoughts about that?” I think it is fair to say that Prime Minister Harper was interested in the courts not constraining governments in terms of the kinds of things he had in mind, and Mr. Blakeney not wanting the courts to constrain the things he had in mind, which were much more socially proactive. With respect to what Prime Minister Harper had to say, Mr. Blakeney said, “I agree 100%.”

I was a bit surprised until I thought it through, and I think I understand it a bit better. But we have moved in that direction. Section 7 of the Charter was thought by its founders and drafters to be merely a procedural check, and it has grown into a meaningful, substantive right. I think section 7 is the one most engaged in this question and the most difficult one to navigate by the government. I don’t want to get into details, but if you think about something that violates a fundamental principle of justice, which is what section 7 says, it’s hard to think of any language that will justify it, notwithstanding a few academics who have recently been trying to do so.

My point is that autonomy has gotten to be big. In some ways, it makes these questions so much harder to wrestle to the ground. In terms of the second part of the bill, no reasonable likelihood of death, there are almost two competing autonomies, if I can put it that way: the autonomy to be protected from vulnerability in one’s life and the autonomy to make an autonomous choice to die because you’re suffering, even though one’s death might be some distance into the future.

What are the boundaries? We have tried to create guardrails in Bill C-14 and in this legislation. I don’t know whether they’re the right ones. In my view, these are more policy choices that would withstand constitutional scrutiny, a government trying to make the right procedural choice, if I can call it that, in relation to access to medical assistance in dying. I’m less anxious about that. In the private dialogues I’ve had with Senator Gold, my sense is that one might choose different guidelines, but those are not going to be constitutionally problematic.

However, those are actually the smaller questions. The big question of autonomy — namely, when can we tell somebody they can’t make the choice to take their own life or have someone assist them — is a hard question.

In the 1970s, we decriminalized suicide. I don’t think we said suicide is good, but we said that people can make that choice if they like and we’re not going to hold them criminally accountable — particularly in the most tragic case when you try to take your life and don’t succeed and are charged with attempted suicide. That’s an awful interference with a person’s choice.

On the whole, I think we are moving in that direction. There are so many different features at play here. To what extent can morality speak to this question? That is difficult. To the extent that is a voice, what we’d like to think of as secular governments have listened, and I think it has been honoured in the dialogue.

Ought it play a part in these questions? I have real reservations about that, but I know others think that should be a factor. A societal measure of its goodness takes into account moral and sometimes religious values.

It’s really not an answer, Senator Dasko. Probably each of us when we get to this question is wrestling with it in small or large ways ourselves. We tend to believe in the private nature of choice, but at what level of choice do we become, at a certain point as a society, particularly uncomfortable?

I’m not uncomfortable with where we are here. I think it’s the right, honourable and constitutional choice, but I know others would make different choices. Thank you.

Hon. Yonah Martin (Deputy Leader of the Opposition)
[20:40]

Senator Cotter, thank you for your speech — very eloquently delivered and very difficult to follow.

I am the final speaker of the evening, and I think there is enough time for me to complete my statement, so I will proceed.

It’s a very important debate and, as others have said, I want to acknowledge the effort and the passion and the commitment to the very thoughtful speeches already by our sponsor, our critic, our leaders, everyone in this chamber, and Senator Cotter most recently.

This is an extremely important one, so I wish to add my voice to this complex, sensitive and difficult debate that weighs heavily on all of us. As parliamentarians, we know that the final words imprinted on this piece of legislation, Bill C-7, will literally determine who has the right to bring their life to an end, when, by whom and how it will be done. I know that we did previously pass Bill C-14. I wish I could turn back time in some respects, but instead, I will do a flashback to 2016 just to remind ourselves as to where we were then and what has happened since.

The previous MAID bill, Bill C-14, was one of the most difficult pieces of legislation for me personally and for our chamber to deal with, as it was enacting an assisted dying bill for the very first time in our nation’s history, one that many other countries had not yet explored. We had robust debate at each stage, much longer than now, and our chamber was extremely divided throughout the process.

As I recall, it still felt as though we didn’t have enough time to make a monumental decision for our country. As a chamber we sought opinions, research and knowledge from experts, patients, families, Indigenous leaders, nurses and caregivers. At the end of the day, we came to a final vote on Bill C-14 as the Supreme Court imposed a deadline to pass federal legislation to allow medical assisted dying in Canada.

From the onset, I was extremely opposed to the bill and had every intention of voting against it, to the very end, but there was a ruling in the Alberta Court of Appeal, which was mentioned by Senator Batters, at that time that was opening up the doors alarmingly wide for MAID. I was advised then that passing federal legislation with safeguards we had managed to include through amendments and the inclusion of the foreseeable death provision was better than not having a federal regime in place.

I recall being advised that provinces have the responsibility of administering MAID and that they would be able to tighten the federal regime’s framework by adding further safeguards where needed. However, in my province of British Columbia, the opposite happened with the election of a different government. Rather than a strengthening and tightening of the MAID regime, there have been several concerning developments.

In fact, last July, Alan Nichols from Chilliwack, B.C., who struggled with depression with no signs of imminent foreseeable death, was given approval for MAID by health professionals despite pleas from his family who believed he did not fit the government criteria for MAID eligibility based on Bill C-14. Knowing I had voted for Bill C-14 with the hope of addressing outstanding issues like palliative care and greater safeguards, I find myself on heightened alert as we debate Bill C-7.

Honourable senators, what I wish to raise today is the concern I feel and share with many constituents across Canada who have contacted my office, as I’m sure they have yours. Should Bill C-7 pass unamended, it will bring unintended consequences on vulnerable individuals in our country during their time of deepest need and care. During the pre-study of Bill C-7 at the Standing Senate Committee on Legal and Constitutional Affairs, I had the opportunity to participate on several of those days as an ex officio member. The committee sat for five days straight and heard from a wide range of witnesses who shared their personal stories, expertise and recommendations to improve Bill C-7.

The information and differing opinions were overwhelming and made it absolutely clear to me that there are significant issues with this bill and gaps that need to be closed, and that we cannot rush this legislation. Colleagues, many have stated this and we know that there is no reversal of death. The end of life means the end, full stop.

Unlike Bill C-14, Bill C-7 expands the eligibility for medically assisted dying to those not facing near death but are living with a disability. However, it does not include those living with mental health issues. This opens up a consequential debate on whether this legislation implies that some lives are not worth living and covers up a deeper societal issue by providing an end-of-life solution to a greater social problem of neglect rather than fixing the gaps in our health care system across Canada.

In the words of Assistant Professor Jonas-Sébastien Beaudry, who so clearly articulated in Policy Options magazine, it’s not a matter of legal or ethical issue on whether people cannot judge for themselves when they feel their lives are not worth living. The issue is rather a political and social one because:

Bill C-7 opens a normative space in which various social actors, including medical experts and the state itself, can discuss the topic of “lives not worth living.”

Another concern I have with the current monitoring and reporting system is that it is not properly constructed and relies on self-reporting by MAID providers, leaving families with no way to penetrate doctor-patient privilege if they suspect wrongdoing. Our colleagues in the House of Commons raised the need for robust and standardized federal monitoring and data collection on MAID, and to receive reliable national datasets to understand who is accessing MAID and why.

Dr. Leonie Herx added there’s no oversight system separate from what is being done at Health Canada, where cases of MAID administration and compliance issues can be reviewed at a provincial level along with more thorough reporting from provinces. Currently only Quebec and Ontario have such an oversight system in place.

I was quite impressed with what some of the Quebec witnesses were able to tell us about how the regime is being monitored and administered in that province. I wish that one of the things we could do concurrently with what we are doing is to just begin the consultation and the sharing of best practices so that we can have what Quebecers have in terms of more consensus and sharing of information so that we can have availability of the best practices across Canada and more assurances for safeguarding the lives of the most vulnerable people.

Not only are we lacking clear and specific data, but witnesses expressed their concern that there is no proper standard in the delivery of MAID nor enough training for physicians and MAID providers. Dr. Mona Gupta, in response to a question, stated that:

The clinical community has been crying out for more training in MAID, end-of-life care and a variety of domains . . .

While I heard that the 10-day reflection period between the day the patient signed the written request and the day MAID is provided has not served the purpose of its original intent and only prolonged pain for patients set to receive MAID, I believe this safeguard is important to ensure certainty about the decision to receive MAID.

According to Health Canada’s report on MAID in 2019, 263 people withdrew their request for MAID because they had changed their minds. Of those people who changed their minds about MAID, one in five withdrew their request immediately before MAID was to be carried out. The current law allows for the reflection period to be reduced if death or loss of capacity to provide informed consent is imminent. As such, the removal of the 10-day period is dangerous in cases of patients who sign a request in the morning and can receive MAID the same day without reflection.

In fact, what unnerves me gravely is the wording of the greater certainty clause with regard to advance consent for MAID, which reads:

. . . involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance . . . .

— and can receive MAID.

Currently, if any patient resists at any time, practitioners would not be allowed to provide MAID. How can we, as legislators, be asked to accept such a provision of what constitutes a real sign of involuntary resistance?

As an example, my mother is in long-term care with advanced dementia, doesn’t recognize me or any member of the family, and was sound asleep when I was supposed to have a scheduled FaceTime call. The health professional on the other end took the camera into the room just to show me that she was sound asleep. And we were talking quite quietly and my mother stirred and just looked over as if recognizing my voice.

When I think about my own mother and envisioning a time if we were to ignore an involuntary movement or sound and continue a process, I would not want to be the family member put in such a position. So this is one of the provisions that really unnerved me because of my current situation with my own mother.

Dr. Trudo Lemmens, Professor and Scholl Chair in Health Law and Policy, Faculty of Law, University of Toronto, has done extensive work on the study of international and Canadian MAID practices and law. In his testimony to the Legal Committee, he said that this clause:

. . . violates the Convention on the Rights of Persons with Disabilities, which says loss of capacity doesn’t mean you lose your rights, including your potential right to express, in one way or another, your resistance to something, or your change of mind.

Dr. Harvey Max Chochinov, Distinguished Professor, University of Manitoba, shared data with the committee that the desire for death is fluctuant. One study done in Belgium by a psychiatrist looked at 100 patients requesting euthanasia on the grounds of mental conditions alone. Of those 100 patients, 38 patients eventually withdrew their requests, 11 of them after they had been approved. In Oregon, 20% to 40% of the people who request lethal medication, in fact, never take that medication. Dr. Chochinov argued that, according to data, the idea of someone who makes up their mind today and holds fast to it is simply not true.

When Minister Patty Hajdu came to testify at the Senate committee, I had the opportunity to ask her about stop mechanisms in place once MAID is triggered. She didn’t answer with any specific explanation and assurances of stop mechanisms, but what I have heard from witnesses and health professionals is that until the day of final consent, there are no mandatory checks about whether the patient has changed his or her mind.

According to an article written by Dr. Leonie Herx, Dr. Margaret Cottle and Dr. John Scott in the World Medical Journal, there is no direct oversight or mechanism to stop the administration of MAID in real time, even if red flags are raised. They state that “monitoring requirements include only basic demographic information and are reviewed in retrospect.” This means that there’s no mechanism that halts the MAID process, where someone can pause and review whether an individual has first received adequate care before continuing with MAID. Only through retrospective review of the reports after a person has already passed will we see that a certain percentage of people did not have access to palliative care, for example. Without adequate collection of information, how can MAID be delivered accurately and within compliance of all the regulations?

Professor Jaro Kotalik identified in his article in the Canadian Journal of Bioethics that it took two years and four months after the delivery of MAID had begun for federal monitoring regulations by the federal ministry of health to take effect. One of the most concerning facts he presented is that by the end of December 2019, over 13,000 Canadians died with medical assistance. For almost 10,000 of those MAID cases, we have no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected. Our provinces, territories and health institutions must work together to share information so that more information on who was receiving MAID, as well as any known vulnerabilities in socio-economic status, is collected and properly analyzed.

And what about palliative care? We’ve talked a lot about that in this chamber. Many honourable senators have spoken about the need for better and more accessible palliative care across the country. When I stood to make the difficult vote on Bill C-14, we were told by the government that palliative care would be reviewed. However, due to COVID, this review has not yet happened, but we are being asked to vote on a bill that expands eligibility criteria to MAID.

As many witnesses and honourable senators have stated, palliative care must be part of the spectrum of care and must be offered and made available before initiating conversations about MAID, not as an option along with MAID. I believe that MAID must be at the end of life, after all other services and support have been properly offered and made available.

Finally, Bill C-7 in its current form does not adequately protect conscience rights against forcing a physician to refer a patient for assisted suicide when it is against their conscience to do so. We have heard that Bill C-14 outlines conscience rights. However, the MAID regime is still relatively new, and forcing an individual to refer a person for MAID has not been tested in the Supreme Court of Canada.

Dr. Leonie Herx stated that the expectation of physician participation of MAID in Canada far exceeds that of any other permissive jurisdiction in the world. I have heard from doctors that they wish to see Bill C-7 strengthened and clarify the conscience clause in Bill C-14. Dr. Ewan Goligher, Assistant Professor of Medicine, University of Toronto, stated that even a referral makes a physician morally culpable.

In 2018, Dr. Diane Kelso highlighted that the Ontario Ministry of Health established a care coordination service where patients and caregivers can request directly to be connected to a doctor or nurse practitioner who provides MAID. However, the provincial college still required physicians to provide a direct referral. This is also the same in Nova Scotia, where physicians and nurse practitioners are required to make an effective referral for MAID.

At committee, several witnesses recommended to us further clarification in the Criminal Code would provide better clarity on whether or not referrals would be participating in the act of providing MAID. This is a very difficult aspect of our debate and one that I neither fully understand, nor comprehend. But listening to some of the medical professionals plead to the committee really did leave an impression with me.

Honourable senators, I will do my very best to conclude. I have several pages remaining. Thank you, colleagues. I will then, if I may, Your Honour, adjourn for the balance of my time.