Criminal Code

Point of Order--Speaker's Ruling Reserved

February 11, 2021


Hon. Marc Gold (Government Representative in the Senate)
[16:32]

Your Honour, before I explain the admissibility reservations I have on this amendment, I do want to acknowledge the advocacy and determined work of my colleague, Senator McPhedran. Indeed, I appreciate the intentions and the concerns involved with her amendment.

However, I must respectfully submit that this amendment is out of order because it violates the Rules and practices governing the receivability of amendments and as such should not be considered by the Senate.

The argument in this case is straightforward. In a nutshell, Senator McPhedran’s amendment cannot proceed because it does not respect the objective and principle of the bill and is destructive of its goals. More specifically, the amendment fundamentally undermines the fundamental policy objective and intent of the bill, to respond to the Superior Court of Quebec’s decision in Truchon v. Attorney General of Canada and, consistent with that decision, to no longer limit eligibility for medical assistance in dying to persons whose natural death is reasonably foreseeable.

Now, on the receivability of amendments after second reading, Senate Procedure in Practice explains the following:

 . . . It is a fundamental principle that “[a] committee is bound by the decision of the House, given on second reading, in favour of the principle of the bill, and should not, therefore, amend the bill in a manner destructive of this principle.”

A December 9, 2009 ruling by Speaker Kinsella concerning the admissibility of amendments to Bill C-51, a budget implementation bill, clearly had defined the admissibility criteria for amendments to a bill.

As honourable senators know, an amendment moved in committee must respect the principle and scope of the bill . . . It may generally be helpful to view the principle as the intention underlying a bill.

On April 13, 2017, while ruling on a point of order by our esteemed colleague Senator Lankin, regarding the admissibility of certain amendments to Bill C-6, an act to amend the Citizenship Act, Speaker Furey summarized the Rules of admissibility that were again at issue here, saying:

It is a basic tenet of parliamentary practice that an amendment must respect the principle and scope of a bill . . .

Amendments . . . cannot introduce elements or factors . . . destructive of its original goals. In addition, amendments must respect the objectives of the bill. In considering these issues, it may be necessary to identify the fundamental policy and goals behind a bill. Factors such as the long title of the bill, its content and the debate at second reading may be taken into account.

The fundamental policy and goals of the bill are well-known to this chamber and quite straightforward. The bill was brought forward to respond to the decision in Truchon by expanding MAID to cases where death is not reasonably foreseeable while providing for additional safeguards in those cases.

In his second-reading speech in the other place, the Minister of Justice identified the main objectives of the bill as follows:

 . . . this bill proposes a legislative response to the Quebec Superior Court’s ruling in Truchon and Gladu, in which the court ruled that it is unconstitutional to limit MAID to persons whose death is reasonably foreseeable. . . .

The bill before members today, four years after the enactment of Canada’s first medical assistance in dying provisions in 2016, proposes a significant change to Canada’s MAID regime in broadening eligibility to persons whose natural death is not reasonably foreseeable.

And in this place, the Minister of Justice explained Bill C-7’s intent at the Standing Senate Committee on Legal and Constitutional Affairs, as follows:

I would briefly like to describe the main aspects of Bill C-7, which would make major changes to the medical assistance in dying, or MAID, regime.

First, in direct response to the Truchon decision, Bill C-7 would repeal the eligibility criterion requiring that a person’s natural death be reasonably foreseeable.

Access to our medical assistance in dying regime would thus no longer be limited to individuals suffering at the end of their lives. This change would allow Canadians who are suffering and who meet eligibility criteria to choose a peaceful death where they feel their situation has become intolerable. This change is consistent with the autonomy of Canadians.

These objectives are also laid out clearly and unambiguously in the first six lines of the preamble to Bill C-7, which, I may note, Senator McPhedran’s amendment would delete. The preamble reads:

Whereas the Government of Canada has committed to responding to the Superior Court of Québec decision in Truchon v. Attorney General of Canada;

Whereas Parliament considers that it is appropriate to no longer limit eligibility for medical assistance in dying to persons whose natural death is reasonably foreseeable and to provide additional safeguards for those persons whose natural death is not reasonably foreseeable;

I submit to you that Senator McPhedran’s amendment does not respect the principle expressed by the preamble, and is so manifestly destructive of the objectives of Bill C-7 that it fails to meet the threshold of admissibility of the Senate’s Rules and practices.

The amendment first proposes to delete lines 1 to 6 of the preamble, which I have just read on the record, and which outline the core principle, intent and objectives of the legislation. Those deletions make it clear that the amendment is explicitly designed to undermine those stated principles and goals.

Now, for the amendment to remove lines 1 to 6 from the preamble may seem like a dead giveaway, an admission of sorts that the amendment seeks to undermine those goals. However, when one takes a closer look at the subsequent parts of the amendment, specifically those that alter the substantive clauses of Bill C-7, it becomes clear that it would have been inconsistent and illogical from a drafting perspective for the amendment to maintain the preamble intact. That is because, with the amendments proposed, rather than expanding eligibility for medical assistance in dying beyond the end-of-life context, the bill would go back to limiting eligibility for medical assistance in dying to persons whose death is reasonably foreseeable.

Now I do understand that this amendment is being proposed with the protection of vulnerable Canadians in mind. However, in the province of Quebec, the amendments would destroy Bill C-7’s goal of providing additional safeguards for those persons whose natural death is not reasonably foreseeable. This is because those whose deaths are not reasonably foreseeable would be eligible for MAID, but without the safeguards proposed in this legislation.

Your Honour, Bill C-7’s core objective is to respond to the Truchon decision and, consequently, to expand eligibility in light of the Superior Court’s findings with respect to the reasonably foreseeable death criteria.

Senator McPhedran’s amendment is a rejection of the findings in Truchon and a rejection of the proposed expansion. Frankly, it is no exaggeration to say that the amendment proposes the opposite of Bill C-7.

Your Honour, before I conclude, I would like to briefly point out some key distinctions between Speaker Furey’s ruling on Bill C-14 and the issue at hand. To my mind, the facts on Bill C-14 have to be distinguished. In that instance, Senator Harder moved a motion to concur with the message from the House. Senator Joyal sought to amend this motion so that the Senate would accept the message but suspend the implementation of the “reasonably foreseeable death” criterion up to the time that the government will have requested the Supreme Court’s ruling on its constitutionality.

On a point of order, Senator Harder argued that the amendment was beyond the scope of his motion and the amendments addressed by the message. So the only question in that instance was one of scope: specifically, whether Senator Joyal’s amendment was bringing entirely new issues into play and whether the amendment could be reasonably seen as being relevant to the message.

Senator Furey observed that the amendment that Senator Joyal had moved accepted most of what the House of Commons had proposed to the Senate in relation to amendments and, further, that the effect of his amendment— if accepted by the two houses — would be to delay the coming into force of the provision of the bill that is already included in the message. As such, the amendment could reasonably be seen as being relevant to the message.

But in this instance, I am making a very different argument before a very different set of facts. My argument is that the amendment does not respect the principle and objectives of Bill C-7, namely to respond to the Truchon decision and expand eligibility for medical assistance in dying beyond the end-of-life context. The amendment in fact rejects Truchon and rejects the eligibility for medical assistance in dying beyond the end-of-life context.

As such — and here I repeat myself — it is no exaggeration to say that the amendment proposes the opposite of Bill C-7. For these reasons, I respectfully submit that the amendment is clearly out of order. Thank you.

The Hon. the Speaker pro tempore
[16:42]

Does any senator wish to comment on the point of order?

Hon. Pierre J. Dalphond
[16:43]

Honourable senators, I would add my support to that point of order. I have nothing else to say except that I fully agree. Thank you.

Hon. Marilou McPhedran
[16:43]

Your Honour, I am wondering if there could be some guidance on this matter. I know that a number of senators indicated they wish to speak to the amendment. Is it possible to allow debate on the amendment, understanding that you will be making a ruling and that ruling may very well support the position taken by Senator Gold?

It seems to me that what happened with Senator Joyal’s amendment in Bill C-14 is still relevant to this situation. I would hope that the voices of senators who did want to speak to at least could be put on the record.

Hon. Donald Neil Plett (Leader of the Opposition)
[16:44]

Honourable senators, I would like to say a few words. I would simply add my voice to Senator McPhedran’s.

I am not a legal scholar. Senator Gold is a law professor and Senator Dalphond is a retired judge. I’m sure they know the law much better than I do, but I am saddened by the government leader trying to find ways of getting his way here — as he has most of this week — whether or not that is possible to do.

Your Honour, I support Senator McPhedran’s amendment. I won’t speak to it until you give me the right to speak to it, but I would encourage this chamber to continue the debate. I would challenge the Leader of the Government to accept the democratic will of this chamber to be able to debate this very flawed bill that the government has brought before us and to debate good amendments, like the one Senator McPhedran has brought forward.

I will respect the ruling of the Speaker. Obviously you will want to take this under advisement. I simply want to be on the record that I support our debating this very good amendment.

Hon. Yonah Martin (Deputy Leader of the Opposition)
[16:45]

I rise on the point of order, Your Honour.

I was just waiting to see what you would do about this point of order, whether you were taking it under advisement and how this would work. This is our first point of order in this debate.

I am a bit confused about Senator Gold’s positions on everything — obviously not on this, I can see why he is raising a point of order. When we had amendments up to this point, for instance, Senator Wallin’s amendment that was adopted — and she worked very hard to get that done — it was outside the scope, as other senators have raised. Even our critic spoke against it, as did Senator Petitclerc.

Senator Gold has every right to raise this point of order, but he has been silent on some. He has definitely opposed the Conservative amendments. He has spoken against those and yet abstained at other times. So I just thought, on this particular amendment — to which I personally am not speaking, but I do agree with what Senator McPhedran is saying — I was looking forward to hearing the debate. The fact that there is now a point of order is quite disappointing.

As Senator Plett said, this is an unprecedented situation. We have a hybrid setting. We have had these themes. What happens with this theme now? What happens with this amendment if you’re taking your decision under advisement? There are a lot of questions regarding procedure. Perhaps, with the indulgence of the chamber, it is something we could continue in terms of debate.

I look forward to what you have to say, Your Honour. This is a new situation at the moment, so I look to you for guidance.

Hon. Jim Munson
[16:48]

Honourable senators, I understand what Senator Gold is doing. I understand his point of order, but we have the opportunity to listen to the amendment and the arguments being made. That would, to me, entice the rest of us to actually speak to it, to have the same opportunity in this democratic institution, while you’re thinking of making your own decision, Your Honour, on this.

I say that because disability groups came before the Standing Senate Committee on Legal and Constitutional Affairs. They were free to and were invited to make their concerns known, from the United Nations to any of the 90 organizations that Senator McPhedran is talking about.

When they came to that point, I assume they didn’t come just to speak. They came to be heard. When you’re heard, you would automatically think that a senator might move an amendment. I certainly was hoping to speak to this amendment.

Hon. Diane Bellemare
[16:49]

Madam Speaker, I’ll be very brief. I just want to respond to the comments made by Senator Martin, who compared Senator Wallin’s amendments to the amendment currently before us.

I would say that Senator Wallin’s amendment expanded the scope of the bill considerably, but without going against it, while Senator McPhedran’s amendment definitely goes against the principle of the bill. This amendment completely nullifies it; this is entirely different, and I think the amendment is out of order.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate)
[16:50]

Honourable senators, I would suggest that senators who were supposed to speak on this amendment could speak to the theme overall, and I would also like to make the point that matters pertaining to points of order are subject to the terms of the motion, that we could still proceed with the debate.

Hon. Lucie Moncion
[16:50]

Although I support the debate, I would like to go back to some of the points made by Senator Gold. I will comment in English.

I believe that the amendment proposed by Senator McPhedran would negate the essential purpose of the bill as it goes beyond the scope of the bill as approved by this chamber at second reading, so that has been said.

The essential purpose I’m referring to in this context is the removal of a discriminatory provision from the current law. By removing the foreseeability of death as a limiting criterion for access to MAID, Bill C-7 attempts to give effect to the constitutional rights of individuals who are suffering from grievous and irremediable medical conditions as recognized in the Carter decision by the Supreme Court of Canada, and reaffirmed in Truchon by the Quebec Superior Court. This is in essence what the bill is about.

Senator McPhedran’s amendment would preserve the current discriminatory legal framework, as it would remove access to MAID from people who meet the requirements but whose death is not reasonably foreseeable. It would, in my opinion, kill the bill.

Here is a Speaker’s ruling from the Journals of the Senate, December 9, 2009, on page 1589, and Senator Gold referred to it, taken from the Companion to the Rules of the Senate of Canada, Second Edition. For a better understanding of the rules surrounding the scope of an amendment, the ruling of the Speaker reads as follows:

. . . an amendment moved in committee must respect the principle and scope of the bill, and must be relevant to it. It may generally be helpful to view the principle as the intention underlying a bill. The scope of the bill would then be related to the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions. Finally, relevancy takes into account how an amendment relates to the scope or principle of the bill under examination. An amendment must respect the principle of the bill it seeks to amend, must be within its scope, and must be relevant to it.

The amendment proposed here is, therefore, inadmissible as it goes against the principle and scope of the bill as passed at second reading by this chamber. And I would ask that before we have a vote on this, Your Honour, that you take this under advisement and that you come back with a ruling for us. Thank you.

The Hon. the Speaker pro tempore
[16:53]

Thank you. Honourable senators, we have four more senators that are with us via video conference who want to intervene on this point of order. I will entertain if you want to put forth arguments that have not been put forth to date, so please consider this.

Senator Forest-Niesing, do you have a new argument in regard to the point of order?

Hon. Josée Forest-Niesing
[16:54]

Concerning the point of order, I was only going to thank Senator McPhedran and state that I appreciate the dilemma we find ourselves in.

The Hon. the Speaker pro tempore
[16:54]

Senator Cordy, do you have a new point of view that you want to state?

[16:54]

Yes, I want to talk about an informal agreement that was reached by the leaders.

The Hon. the Speaker pro tempore
[16:55]

Senator Cordy, we are now dealing with the point of order.

[16:55]

This deals with the point of order.

The Hon. the Speaker pro tempore
[16:55]

Okay.

[16:55]

Point 2.8 says: “if a point of order is raised in relation: (a)to an amendment, the Speaker may direct that proceedings on the bill continue as if the amendment were not before the Senate pending . . .” — “it says his” —

The Hon. the Speaker pro tempore
[16:55]

Yes, thank you, Senator Cordy.

Senator Ataullahjan, do you have a new perspective you want to raise on this point of order?

Hon. Salma Ataullahjan
[16:55]

Your Honour, the entire purpose here is to debate and discuss things, so I would like to hear what the other senators have to say. I thank Senator McPhedran for bringing this amendment forward.

The Hon. the Speaker pro tempore
[16:56]

Thank you. I have taken all your comments into consideration on this point of order, and as soon as possible we’ll come back with a ruling.

In the meantime, as per the order that we have all agreed to in regard to the process of debating this bill, I will point to point 2.8:

if a point of order is raised in relation:

(a)to an amendment, the Speaker may direct that proceedings on the bill continue as if the amendment were not before the Senate pending his decision, and debate on the amendment shall resume after the ruling, if the item is in order, whether the ruling is given at that sitting or at a future sitting; . . .

Therefore, we are continuing our debate on this theme, not on the proposed amendment until we have a ruling.

The next speaker on our list is Senator Plett.