Criminal Code

Bill to Amend--Third Reading

February 17, 2021


Hon. Donald Neil Plett (Leader of the Opposition)
[14:58]

Honourable senators, I find myself standing in this place today with a real sense of déjà vu. Almost five years ago, on June 15, 2016, this chamber had just finished considering amendments to Bill C-14 and was about to vote on third reading. Including the pre-study, we had completed a month-long consideration of the government’s assisted suicide bill and had spent the previous week debating amendments. We were all emotionally exhausted. Every one of us who was here at the time remembers those days well. The subject matter was difficult, but we had no choice but to address it the best we could. In the end, Bill C-14 passed the Senate by a vote of 64 to 12 with one abstention.

Our amendments were sent over to the other place, and while a few of them were accepted, most ended up being rejected. I suspect the result of this week’s vote and the outcome of this bill in the other place will be very similar. But even though many things are the same this time around, I have been struck by how much has changed in such a short time.

Bill C-14 had not come to us on the initiative of the government, but because of a decision by the Supreme Court of Canada. It wasn’t a question of whether we were going to have assisted suicide. It was a question of what it would look like and what the safeguards would be.

This is not the case with the bill before us today. Bill C-7 is the result of the federal government choosing to cave in to the opinion of one judge in one province, who decided unilaterally to strike down legislation that had been extensively debated and passed by both houses of Parliament.

The federal government could have defended their legislation. I would argue that they had the responsibility to do so. They simply chose not to. If they had done the right thing and appealed the Truchon decision to the Supreme Court, it would have shown respect for Parliament, and the result would have given us all much-needed clarity on the court’s expectations with the original Carter decision. No, colleagues, we are not here today because of a court decision. We are here today because this government’s ambivalence toward its own legislation and its ineptitude in failing to defend it.

That is not the only thing that is different this time around. Five years ago, we realized that the step we were taking was a momentous one. It was a societal shift, and everyone on both sides of the issue had great respect for those on the other side. We were undoubtedly a partisan chamber back then. We would argue vigorously about government spending, crime legislation and foreign policies. But we knew when to put partisanship aside. This was decidedly one of those issues.

Our views on this matter are shaped by many of our own life experiences and, hopefully, by bringing an open mind to the committee table when we hear from witnesses. Politics plays no part in matters of conscience, especially in what is supposed to be a chamber of sober second thought.

That is why I found it alarming when a senator questioned an amendment that I passionately defended by asking me: What would Stephen Harper say? As if this would somehow make me question this proposal that I had worked on for weeks with physicians, ethicists, medical lawyers, constitutional lawyers and our Senate law clerk’s office.

Since the question was posed, let me tell the senator what Stephen Harper would have said. He would have encouraged me and his entire caucus, the way he always did, to vote our conscience on issues of morality. This is, in fact, a pillar of the Conservative Party of Canada.

I did not bring forward the amendment protecting conscience rights on behalf of the Conservative Party of Canada, or indeed as the leader of the Senate Conservative caucus. I should make it clear that nothing I have said on this topic, including this speech today, is on behalf of my caucus or my party. It should have been evident by the end of last week that there was no uniformity in any caucus on this issue, and that politics was, rightly, not top of mind as we deliberated. I did not bring forward the conscience amendment lightly or without thorough consideration. I brought this amendment forward out of respect for the thousands of physicians and nurses who will leave the profession without this protection, and out of respect for the Indigenous leaders, the faith groups and the professional associations who pleaded with the Senate.

After our study and the subsequent reports showed that the existing protection is inadequate, attempts to strengthen it were shot down. When this amendment, like many proposed last week, was brought forward, there was no attempt to improve it. There were no alternatives given. There was no recognition that this is a real-life problem faced by hundreds and possibly thousands of health professionals. Instead, the concerns of those whose medical careers are at stake were summarily dismissed, even when it has been clearly proven that such protection would result in no barrier to access.

Those who cavalierly dismiss this issue as “it’s working well” or “it’s a balanced approach” are either unaware of the battle in Ontario which led the Ontario Medical Association to ask Parliament to intervene, or they simply were not listening.

Those who raised alarm at how this amendment — and for some reason only this amendment — infringes upon provincial jurisdiction should note that many constitutional lawyers feel that this entire bill risks trampling all over provincial jurisdiction as we seek to regulate health care from the Criminal Code.

In fact, I do not believe that we have ever had a bill go through Legal and Constitutional Affairs Committee where someone did not question its constitutionality, whether that was the Canadian Bar Association, the Canadian Civil Liberties Association or the Canadian Council of Criminal Defence Lawyers. We listened, and ultimately, we charged forward based on the merits of the proposed policy.

We understood that our role was ultimately to do the right thing; enact sound policy and let the courts do their part. Let’s not ring the unconstitutional alarm bells only when someone brings forward an amendment that we do not like.

We get to move on after these proposals are rejected. Our jobs remain safe. We get to continue to do what we love. However, for many in this country, this marks the end of a meaningful, compassionate medical career.

As I said, amendments were handled differently this time around. The structure was the same. We lumped together the themes and moved through the topics together, but the attitude was very different. During this chamber’s consideration of Bill C-14, we saw many amendments put forward, but we did not have the enthusiastic, almost gleeful attacks on those amendments like we have seen this time. There was recognition that the amendments that had been put forward were done so out of deeply held personal convictions, and there was respect for those whose beliefs were different from your own.

I intentionally chose not to engage on amendments I disagreed with, because I knew that each of these amendments was carefully considered and not brought forward lightly. While I may have strongly disagreed with what was being proposed, I was not about to challenge another senator’s personal convictions. Of course, there are ways to engage in meaningful, respectful debate on these amendments, and we did see some of that. However, it saddened me, for the many Canadians who were tuned into the Senate for this short time and especially for the witnesses, to see their concerns dismissed in such a disrespectful way.

I was recently reminded of a story of how Senator Joyal, one of those who advocated vigorously for Bill C-14, approached another senator, one of my colleagues, who had just spoken from the heart in this chamber about her deep reservations regarding medical assistance in dying.

He told her how much he had appreciated what she had to say, and how important it was that her viewpoint be heard in this debate. They were on opposite sides of this issue, yet there was mutual respect and even support for one another.

I remember vividly when Senator Joyal — a legal mind for whom we all have tremendous respect — approached me after my speech on C-14. This speech was purely on moral concerns I had with this legislation, and it was spoken from the heart. He told me afterwards how much he had appreciated my words and how important they were as we deliberated this important issue. Again, we were on opposite sides of this bill, but he appreciated my words as much as I appreciated his scholarly insight.

That respect extended to my participation on the Legal and Constitutional Affairs Committee. When I first joined that committee, I did so reluctantly. I felt completely out of place. I was clearly the furthest thing from a legal scholar. But senator Serge Joyal and senator George Baker were my biggest champions on that committee. They would often tell me how at times we needed some common sense to cut through the noise, and encouraged me to remain a member of the committee when I had doubts. We were more often than not on opposite sides of an issue and fought fervently to defend our positions, but the respect we had for one another was paramount.

Senators, I long for those days. In 2016, we did not hear the contemptuous voices when senators’ viewpoints or values differed from the witnesses at committee. I was shocked to see how some witnesses were blatantly disrespected and even ridiculed for their positions. When witnesses are invited by our committee to testify, because we have decided that their expertise or perspective would be of value, we can question their arguments, but we do not question their integrity or their motivations.

A lawyer who testified on behalf of a faith-based advocacy group was accused by a senator of using the plights of the disability community as leverage to advance an ideological cause against MAID, without having regard for these concerns outside of the issue of MAID. That suggestion was clearly shot down when the witness ran through the multitude of work that he and his organization do for the disability community. However, this highly credible and respectful witness should not have to respond to such an insinuating accusation.

And then, to have a physician who has been called as an expert in multiple U.S. Supreme Court cases be accused of peddling a conspiracy theory or endure name-calling like “Professor Google” because he raised concerns that some disagree with. This is beneath us in this chamber. Dr. Zivot simply raised a question and encouraged the Government of Canada to engage in post-mortem analysis so that we can know for certain that the drugs we are using in the MAID procedure have the impact that we expect them to.

Colleagues, much has changed in five years. In 2016, there was great concern about safeguards. Now, five years later, safeguards are being called a “barrier to access,” perpetuated by those ideologically opposed to assisted dying. How quickly we forget that the trial judge in Carter called for “. . . stringent and well-enforced safeguards.” The Supreme Court justices said “. . . a carefully designed and monitored system of safeguards” was needed. Yet in our deliberations, every voice that noted that the current safeguards are insufficient was brushed aside.

Take, for example, Senator Batters’ amendment to ensure that the 10-day reflection period was preserved. It’s ironic, colleagues; in the province of Nova Scotia, after a couple has been granted a marriage certificate, they have to wait for five days before they can get married. In Quebec, that waiting period is 20 days. After all, colleagues, this is a serious decision to get married, and we do not take it without careful consideration. And yet when someone wants to make a decision to end their life, we have decided no reflection period is needed.

In 2016, there was a significant emphasis on ensuring that palliative care would not only be protected, but improved and made accessible to all. Yet during the testimony at committee this time, we found that not only has this not happened, but the resources that used to be directed to palliative care are now being redirected to medical assistance in dying. In some cases, palliative care hospices are being closed unless they also offer MAID to their clients. This makes palliative care less accessible, not more. Yet, this time around, the pleas for changes and more rigorous protection fell on deaf ears.

Colleagues, these things trouble me greatly. We are not gently sliding down a slippery slope, as international experts have warned; we are in a free fall.

You may recall that during the debate over the first MAID bill, the government faced the same accusations that are being levelled against it in this debate. Critics contended that the bill would be found unconstitutional because it did not permit MAID for psychiatric illnesses and because it required that death be reasonably foreseeable. If you recall, the Court of Appeal of Alberta considered both of these issues on May 17, 2016, and confirmed what the critics were saying. On the issue of whether MAID should be made available to those who are not terminally ill, the appeal court said:

. . . the declaration of invalidity in Carter 2015 does not require that the applicant be terminally ill to qualify for the authorization.

On the issue of psychiatric illness, the court said, “Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.”

This was the period before Bill C-14 was passed by Parliament. Critics seized on the court’s decision to hammer justice minister Jody Wilson-Raybould with the accusation that Bill C-14 was too restrictive and medical assistance in dying needed to be more broadly available. The justice minister’s response was very instructive. Here’s what she said:

Let me be clear. This proposed legislation permits medical assistance in dying to an overwhelming number of those who are expected to seek it, namely, those who are nearing or who are at the final stage of life. Data from places where assistance in dying is lawful bear this out. Make no mistake that Bill C-14 would provide access to the vast majority of Canadians who would seek to access it.

At the same time that Bill C-14 permits access to the majority of those who would want it, it would not allow any and all Canadians to access it. It limits access in accordance with the legislative objectives that are stated in the preamble of the bill. These new legislative objectives were not part of the old law. Accordingly, the new legislative objectives change the charter analysis which has not been acknowledged by those who say that Bill C-14 will be struck down.

Minister Wilson-Raybould informed the members of the other place that Bill C-14 introduced new legislative objectives that would change the Charter analysis. The minister was confident that by clarifying the objective of the legislation, the court would have to incorporate this new information into any future examination of the law, forcing them towards a different conclusion than what was reached in Carter.

I will leave it to the lawyers and legal experts in this chamber to debate whether the former justice minister’s claims were well-founded. However, in my mind, it is telling that the government refused to allow it to be tested at the Supreme Court. Rather than appealing the Truchon decision, they simply embraced it.

It is no secret that the views of the current Justice Minister, David Lametti, differ greatly from the former justice minister. In 2016, Mr. Lametti stood in the House of Commons and voted against his government’s Bill C-14 at third reading, because he felt it did not go far enough.

When the Truchon decision came down, Minister Lametti had no intentions of challenging it because it was exactly what he wanted. He is on the record that he believes Bill C-7 strikes the right balance and hopes that MAID will eventually be expanded to include people suffering with mental illness.

Ms. Wilson-Raybould, on the other hand, has publicly challenged Minister Lametti’s rewrite of Bill C-14, noting that not only did he fail to appeal the Truchon decision but that he and the Trudeau government are going much further than the Truchon decision required by scrapping the 10-day reflection period for patients close to death.

Last year, on November 23, Ms. Wilson-Raybould stood up in Question Period in the other place and said the following:

Mr. Speaker, why is Bill C-7, medical assistance in dying, abolishing the safeguard of a 10-day reflection period and reconfirmation of consent, thereby introducing advance requests for MAID?

Nothing in the Truchon decision of the Quebec Court of Appeal, which the government chose not to appeal, requires this, and the Supreme Court of Canada, in Carter, insisted on the requirement of clear consent. Palliative care physicians, disability advocates and other experts insist that this is an important safeguard, and, like other legislated MAID reports on mature minors and mental disorder, advance requests also raise significant challenges.

Colleagues, the government has proceeded with Bill C-7 under the pretense that the Truchon decision has forced it to do so. This is patently false. Former Justice Minister Wilson-Raybould anticipated Charter challenges and took measures to ensure that the act would withstand them. But, again, rather than defending their own legislation, this government chose to abandon it in what can only be interpreted as an unnecessary but intentional shift in government policy on medical assistance in dying.

Honourable senators, this chamber is supposed to provide sober second thought, but I fear we have not done so. We were sent a bill that represents a major shift from our original regime. Namely, the bill has singled out one Charter protected group, the disability community, and offered them a way out, without moving with any urgency to offer them a way into this society. This community, the most directly and profoundly impacted group, has resoundingly come out in opposition to this legislation. The message this bill sends to them, colleagues, is truly horrifying.

Gabrielle Peters, a woman living with a disability, and a passionate advocate, explained precisely how discriminatory this legislation is. The first track of this legislation is available to all Canadians equally. Any Canadian who is approaching end of life with a grievous and irremediable medical condition is eligible for physician-induced death. The second track has now singled out one Charter-protected group, the disability community, and told them that they can also end their lives. How is this not discriminatory?

I want to personally thank Gabrielle Peters and every other disability advocate who has been engaged on this issue for their continued engagement even when it has been difficult beyond measure. Ms. Peters has continued to keep parliamentarians in check of their ableist assumptions as we make decisions that will affect their lives so deeply.

Senators, when we read accounts into records of people living with a disability, with graphic details of their symptoms and conclude that this is not a life, this is not living, please be mindful of how that feels to the thousands of Canadians who live with those very symptoms and who know that their life is worth living.

Gabrielle Peters tweeted the following last night:

I can’t do this.

There is a senator standing in the Canadian Senate reading out symptoms I live with every day and saying: This is not living. This is not a life.

I am sobbing. Thank you Canada for telling me I am not alive. I guess that makes killing me easy.

Colleagues, let’s be cognizant of our words and their impact as we conclude this debate.

The disability community is overwhelmingly concerned about the impact on their community. We know that the services available to Canadians living with a disability are shamefully inadequate. We know that many attribute their suffering to the lack of available services rather than the disability itself, and this will be unquestionably the result of the death of valuable members of our society — death which is preventable. We know that the United Nations has raised grave concerns, and yet we are voting to send a bill back to the House of Commons that includes expansion proposals but has not taken into consideration a single concern raised by the group most profoundly impacted — a group that includes 6.2 million Canadians.

Colleagues, we have failed our disability community. Yet we swiftly passed a proposal that did not receive study or scrutiny at either our extensive pre-study or regular committee study. I am not weighing in on the merits of this proposal, as I know the motivations were good. But we did not have any rationale to move forward with this amendment. This, too, should have been left to be studied in greater detail at our five-year review that we have not yet had.

We also failed to address Indigenous concerns. I have spoken about this at length, and we are all aware of the lack of consultation that preceded this legislation. However, I would like to read part of one letter from Dr. Thomas Fung of Siksika Health Services, Siksika Nation. He thanked many of us for speaking and voting in favour of conscience protection for Indigenous practitioners, and elaborated on the importance. He concluded with the following:

Even though the amendment did not pass, please be consoled that my friend with schizophrenia thanks you. He said that if MAiD was available at his worst, he would not be here today. He is glad to be alive, having accomplished a PhD in Math. He shares his love of reciting poetry in public to the delight of many.

Another patient of mine had indicated to his family that he wanted MAiD 1.5 years ago when he entered long term care. He didn’t qualify because he was not near death. He was a difficult and irritable man who had abused alcohol and was estranged from most of his family. His arthritic pain was not well managed. But since being cared for at our facility: his pain was controlled with medications; his anger was tempered by the care of attentive staff; and I will go as far as saying that he became a pleasant man. Had Bill C-7 been in effect, his life would have been cut short, and he would have been deprived of the opportunity to make peace with himself. He died comfortably of natural causes this week.

These are some of the reasons why I reject Bill C-7. I will also continue to work with Indigenous advocates to hold the Government of Canada accountable for not having allowed their voices and concerns to have any meaningful influence in policy development & health delivery. Much work is needed ahead.

I was saddened that when we received a letter from multiple Indigenous leaders and groups who were not consulted from the outset and asking us to bring forward two simple amendments that would make this legislation less harmful to their communities, they were overwhelmingly dismissed.

I also believe it’s important to highlight the words of psychiatrist Dr. John Maher who wrote to all of us this past weekend following the passage of the sunset clause amendment. He said:

Honourable senators, I saw 20 patients on Friday. In supporting the amendment for a sunset clause for MAID for mental illness, you have already led some of my patients who were gradually healing to say they will now stop treatment because MAID is coming.

He continues, “You don’t know them, but I know them. I have known them for years.”

These are his words, not mine.

When Senator Kutcher publicly describes doctors like me as discriminating against our patients and being paternalistic, it breaks my heart. I am trying to save their lives and help them find hope and meaning. As they heal, their suffering isn’t primarily from disease. It is from a society that, along with all of the other stigmatization and rejection, is now wanting to help them die. I can’t tell you how sad I am.

Dr. Maher provides a series of myths and facts on MAID for mental illness, which I would encourage you all to read. He dispels a series of myths, including but not limited to: Bill C-7 is not discriminatory; MAID is consistent with each doctor’s professional obligation to practise according to established standards of care; psychiatrists can predict which people will not recover from their mental illness; MAID doesn’t make patients want suicide; MAID is not suicide; a doctor helping a patient complete suicide is not a moral issue in a secular and pluralistic society; MAID for mental illness enhances personal autonomy; there is good mental health care for all the sickest people in Canada. The list goes on.

Allow me to read one that particularly resonated with me because it speaks to our deliberations in this chamber.

The myth is that the Senate supported an 18-month sunset clause because they wisely weighed all the evidence they heard. In response, Dr. Maher states this:

Fact: The preponderance of Senate Committee evidence did not support moving forward with MAID for mental illness (hence the Committee’s very thoughtful report.) Either there is adequate data to support determinations of irremediability or there is not. If it existed, it would have been presented. It does not exist, so it could not be presented. Therefore, in ignoring the Committee report, the majority of the members of the full Senate gave unjustified weight to supposition, fallacious reasoning, and/or political agenda. Furthermore, they are trying to pre-empt the mandated (and COVID delayed) legislative review of Bill C-14; they did not weigh the clear recommendation of the Canadian Council of Academies that advised against proceeding with MAID for mental illness due to lack of data and the limits of clinical prognoses; they did not respect the informed pleas of myriad organizations representing the most vulnerable of citizens, or of the United Nations; and they are trying to bind parliament to a course of action of their own desire with no request for a reference to the Supreme Court.

Honourable senators, when psychiatrists are pushing for MAID for patients whom other psychiatrists believe they can treat, such referral will be a reflection on the limits of that psychiatrist, not the true irremediability of the illness. The result of those limitations is death. This is nothing short of tragic.

Dr. Maher raises a very good point about the disparity between our Senate committee report and the legislative actions we have taken since. I have also found the leaps we have taken perplexing.

Our actions do not reflect what we have heard or any consensus in psychiatry. As psychiatrist Dr. Sonu Gaind said, “a sunset clause would be putting the cart before the horse without even knowing if the horse exists.”

Colleagues, I know that the rationale for most in this chamber, if not all, for expanding this regime to those with mental illness is born out of compassion or adherence to the Constitution. However, given the vast disagreements on the predictability and the irremediability of mental illness and how high the stakes are when we are dealing with life and death, I urge you to reconsider this message we are sending to the House of Commons.

I am proud of the tireless work of the committee on this bill and its comprehensive reports, and I commend them for that. However, I regret to say I am not proud of the bill we are sending back to the House of Commons. We are categorically not proceeding with caution as we move to make Canada the most permissive regime in the world.

I want to remind colleagues of the sobering observation made by the court in Rodriguez v. versus British Columbia that said:

To the extent that there is a consensus, it is that human life must be respected and we must be careful not to undermine the institutions that protect it. This consensus finds legal expression in our legal system which prohibits capital punishment.

This consensus finds legal expression in our legal system which prohibits capital punishment. This prohibition is supported, in part, on the basis that allowing the state to kill will cheapen the value of human life and thus the state will serve in a sense as a role model for individuals in society. The prohibition against assisted suicide serves a similar purpose. In upholding the respect for life, it may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide. To permit a physician to lawfully participate in taking life would send a signal that there are circumstances in which the state approves of suicide.

Colleagues, the Carter decision overturned Rodriguez, but it did not invalidate this astute observation that by removing the prohibition against assisted suicide you simultaneously diminish respect for life and erode the very thing that discourages:

. . . those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide.

We are creating a situation where there is no longer any viable argument to persuade someone who is intent on dying by suicide at any stage in their life not to do so. By expanding access to selected groups who are not approaching end of life and for whom there may be treatment options available, and by preemptively reducing the safeguards before we have any data to justify it, I fear we are normalizing suicide, and we are even complicit in its promotion as a medical treatment option.

There is a long-standing history of our laws being normative — sometimes positively, and, at times like this, very negatively. When we normalize something, we get more of it. Look no further than Belgium and the Netherlands for ample evidence of this.

This chamber could not have pushed back against the government’s decision not to appeal Truchon. However, I did believe it was incumbent upon us to listen to the experts and proceed with great caution. I do not believe it was our responsibility to push for radical expansion. Those would have been better addressed by a five-year parliamentary review, which we are still awaiting.

In fact, while I hope I am wrong, I find it very troubling that all three government representatives and the sponsor of this bill jointly abstained on the most radical expansion of the amendment proposed. And yet on any proposal to enhance or restore safeguards, they were vehemently opposed. Points of orders were called. Constitutionality was questioned and implications were made that the restoring of the same safeguards that the government artfully defended a few years ago would now be cruel. It will be very telling to see which amendments this government accepts.

But regardless of which amendments passed or failed, I would never have supported this legislation in the end, which indisputably discriminates against 6.2 million Canadians living with a disability. I find our approach in addressing the concerns of this already stigmatized community completely backwards, and I do not believe there is anything redeeming in this legislation.

However, my concerns with this bill that we are sending back far outweigh my concerns with the bill that we received. I will conclude with some wise words from our esteemed colleague Senator Murray Sinclair, to whom many of us paid tribute yesterday. In his first speech to this chamber, he reminded us of our role here, which is to “. . . protect the rights of those whose minority positions are threatened by majority rule. . . .” Senator Sinclair contended that:

We must abide by the proverb that when two foxes and a chicken are voting on what to have for dinner we will stand up for the chicken.

Wise words, colleagues.

Honourable senators, this is our final opportunity to provide sober second thought to this life-and-death legislation. I would encourage all of us to keep that in mind as we vote on whether this bill should proceed. I contend wholeheartedly that it should not. Thank you, colleagues.

Hon. Tony Dean
[15:43]

Honourable senators, I want to start today by commending all of my Senate colleagues for contributing to our rigorous debates on Bill C-7. That certainly includes Senator Plett. I want to commend the bill’s sponsor, Senator Petitclerc, for doing a wonderful job in helping us and guiding us through our deliberations. I want to also commend Senator Kutcher for his work in thinking through the difficult issues with the association between medical assistance in dying and mental health issues.

Colleagues, it’s worth noting that the quality and effectiveness of our debates have been helped by the organization of our work and especially the scheduling of discussion on key themes in the bill and for voting. As we all know, this has repeated the successful approach used in the Senate’s consideration of Bill C-14 in 2016 and of the cannabis reform bill, Bill C-45, in 2016 and 2017. I think there’s a message for us there.

I have several points on Bill C-7. First, as we know, Bill C-7 reaches back to the 2015 Supreme Court decision in Carter but also, as importantly, to the federal government’s response to that decision which, I think it’s fair to say, was both cautious and conservative. In responding to the court, the government at that time introduced the requirements of reasonable foreseeability of death and excluded mental health issues from the new MAID regime.

In 2016, a number of senators argued that these constraints were very likely unconstitutional in light of the Carter decision. And we have heard from some of those same senators again in this debate; their positions have been consistent. We also heard yesterday that the litigants in the Carter case would likely not have met the test of reasonably foreseeable death, so it’s doubtful that the court had that test in mind when it crafted its decision.

In this sense, the more recent Truchon decision, which touched both on reasonable foreseeability of death and the mental health exclusion, was directly connected to issues originally highlighted in the Senate in 2016. In many respects, it was entirely predictable. It was likely just a matter of time.

I recall Senator Wetston talking in our early days here about the three pillars that define the parameters of our work in the Senate — policy, law and politics. We have certainly pinballed our way through these three pillars in our debates on Bill C-7. A graphic representation of this has been our discussion of constitutional rights in relation to the safeguards that should appropriately balance those rights, particularly in view of the concerns raised on behalf of vulnerable Canadians, including those with disabilities, an issue highlighted here by Senators McPhedran, Pate, Miville-Dechêne, Plett and others.

Colleagues, in considering Bill C-7, especially on the major issues, I’ve tended to return again and again to the 2015 Supreme Court decision which dealt in large part with this very issue — that of balancing the rights of Canadians in the context of medical assistance in dying.

Importantly, the Supreme Court in Carter found that the pre-2015 Criminal Code’s prohibitions on medical assistance in dying were intended to protect vulnerable persons from being induced to die by suicide at a time of weakness. The court found that the total ban on assisted dying was overly broad because it also applied to non-vulnerable people and prevented them from receiving a medically assisted death. While the Supreme Court ruled that the criminal law must permit some form of physician-assisted dying, it held that the task of crafting an appropriate response was one for Parliament. For instance, the court stated that there was a need for “. . . a carefully-designed system imposing stringent limits . . . .” to protect vulnerable individuals, and that such complex regulatory regimes are “. . . better created by Parliament than the courts.” It recognized Parliament’s difficult task of balancing the competing interests of those who would seek access to physician-assisted dying and those who may be put at risk by its legalization.

Colleagues, many of those strict safeguards are already in place, and they were described well by Senator Petitclerc, the bill’s sponsor, yesterday. They are found in the very strict eligibility requirements of both Bill C-14 and Bill C-7. We’ve had graphic examples of the extreme pain and distress suffered by applicants for MAID and the especially high bar that this would involve in cases of mental illness.

As we might expect, Canada’s medical community has been preparing for the potential changes that might arise from Bill C-7, which includes extending MAID to those whose death is not reasonably foreseeable and potentially for those with irremediable mental health issues. Senator Carignan touched on this earlier in our debates.

This work is being undertaken by some of Canada’s foremost medical associations, including the Royal College of Physicians and Surgeons of Canada, the College of Family Physicians of Canada, l’Association des médecins psychiatres du Québec, the Canadian Association of MAID Assessors and Providers, and the Canadian Psychiatric Association. Colleagues, these organizations will be revisiting protocols for assessing capacity for decision making, medical assessments, treatment histories, and training for MAID providers; and for assessing for a grievous and irremediable medical condition, as required in the legislation; for a serious and incurable illness, disease or disability, as required in the legislation; and enduring physical or psychological suffering that is intolerable to applicants.

As they do this work, these organizations would likely benefit from perspectives from outside of the medical context, including those of disability advocates and advocates for those stricken with severe mental health issues. In addition to requirements set out in the bill, initiatives such as these would build greater confidence as we move forward in ensuring that legal rights are accompanied by appropriate safeguards.

As we have heard from everyone who has spoken on Bill C-7 in the chamber, I also wholeheartedly join my colleagues in supporting the need for significant additional investments and supports for vulnerable and disabled populations. I think we all agree that this should be a priority for both the federal and provincial governments, especially as investments are made both within and beyond the context of the current COVID-19 crisis.

These are not easy decisions for any of us. They are among the toughest decisions that any of us, as parliamentarians and as policy-makers, will ever make, but on balance, I’m inclined to support the bill as amended. Thank you.

Hon. Yonah Martin (Deputy Leader of the Opposition)
[15:51]

Honourable senators, I rise today with a heavy heart to speak one final time to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), as amended.

I would first like to acknowledge the efforts of the sponsor, Senator Petitclerc; and the critic, Senator Carignan; and all senators and staff for your individual and collective efforts at committee and here in this chamber. Regardless of where our support lies for this bill, democracy was served.

To the committee members and Senate staff who sat and listened to compelling testimony and who found, like me, our emotions getting the better of us, thank you.

Lastly, to the committee chair, Senator Jaffer, and the deputy chair, Senator Batters, who through Herculean efforts managed eight days of testimony from over 130 witnesses, we could not have accomplished so much in the limited time allotted without your guidance and leadership.

Like many of you, I have received countless emails filled with personal stories. My office has fielded calls from Canadian families who have real concerns about Bill C-7, and we have heard witness testimony in committee cautioning us about the ramifications of this bill. Based on all that we have heard and considering my own personal experiences, I am convinced that this bill must not be adopted as originally drafted nor in its now amended state.

Senators, if passed, we will have had a hand in making Canada the least restricted country in the world for medical assistance in dying. This bill fails to explicitly require that all reasonable options be made available and tried first. Even the three most permissive MAID regimes in the world — Belgium, the Netherlands and Luxembourg — treat MAID as the last resort when no other options are seen to remain. As parliamentarians, our actions and words will be recorded and referenced by future generations. Therefore, I believe it is our absolute duty as the chamber of sober second thought to pause and demand answers to all questions and hard evidence on the legislative impact Bill C-7 will have for Canada; to carefully consider the testimony we have heard; and to pause and reflect on our role to stand guard and protect Canadians from the consequences of removing safeguards and opening the doors wide on medical assistance in dying eligibility and accessibility. To quote Senator Tannas: “Life and death matters leave very little room for compromise.”

Honourable senators, I fear that in the pursuit of compassion, we have made grievous compromises that will cause mental and physical harm to Canadians, harm that is magnified by the acute absence of hard evidence and the numerous questions that remain because of the absence of extensive consultations on this bill and the lack of parliamentary oversight. No parliamentary review committee was struck to provide us guidance. Instead, we have had excuses ranging from an impasse in negotiations to the COVID-19 pandemic. In fact, the lingering global pandemic and the threat of a third wave with new variants, the rise in mental health concerns, unemployment, poverty and too many problems to articulate in this speech should put an expansion of MAID on hold rather than passing a flawed bill and putting even one person at risk. As Senator Batters said, “Even one is too many . . . .”

Senator Boniface expressed concern that the Minister of Justice, on an issue of such importance, could not provide any update between when he first appeared for the pre-study two months ago and when he returned for our study on the bill itself a few weeks ago.

Senator Deacon rose and spoke about the need for more qualitative investigation and a more thorough review. She felt as if we had “. . . one hand a bit tied behind our back.”

Honourable senators, on matters of life and death, we need to free our hands. We need to have all of the evidence, all of the facts. Anything less is a failure in our commitment to the Canadian people.

At committee, we heard from witnesses — including the executive director of Toujours Vivant — Not Dead Yet, Amy Hasbrouck; Dr. Leonie Herx; and Bonnie Brayton with the DisAbled Women’s Network Canada, among others — questioning why the government was moving forward with Bill C-7 when the five-year review had not yet begun. Witness testimony was clear and nearly universal: We need more time, evidence and consultation. In response, several colleagues and I had proposed amendments that would have added greater protections. Unfortunately, all of these amendments were rejected.

We also heard from witnesses cautioning us from adopting the approach toward medical assistance in dying that is practised in Belgium and the Netherlands. We were reminded that policy is not about individual cases, and that what we decide today affects all Canadians. Transparency and reporting to mitigate conflicts of interest were encouraged to ensure that those communities not meant to be caught up in this legislation were protected.

The disability community is one such community that has expressed clear concerns about this legislation. One of the most compelling witnesses whose pleas to “Kill Bill C-7 . . . .” and not risk killing disabled people is top of mind in this moment. Senator Plett quoted some of her words, and I too wish to put on the record the following words of Gabrielle Peters, as spoken by Spring Hawes of Dignity Denied:

Having watched the Parliament and Senate proceedings on Bill C-7 and having lived in this country as a disabled, poor woman, particularly during this pandemic, I already know how little value is placed on my knowledge or my experiences or even my life. I don’t arrive here expecting to say I suffer and have the Canadian state turn and ask, “How can we help?” because that is not my lived experience. . . .

We do not need to build a laboratory to discover how to end the suffering of poverty. We know how to end poverty; we just don’t do it. Why have press releases about reconciliation and racism beside press releases about a Bill C-7 that seems to violate the spirit of one and perpetuate the injustice and harm of the other? Were the words spoken here by the Indigenous leaders, by Black disabled people and by disabled people of colour — few though there were — not sufficient? If they were, why is a single MAID provider’s testimony that she is 100% confident about the abilities of 100% of her peers in 100% of the situations to be able to operate 100% free of bias and with 100% accurate assessment treated as credible evidence?

Honourable senators, I’m not questioning the genuine desire and commitment of MAID providers to do their very best, but it is impossible to say that there have never been or ever will be errors in the provision of medical assistance in dying. Gabrielle’s concerns about the dangers of expanding assisted suicide is addressed by U.K. professor Raphael Cohen-Almagor, whose knowledge of MAID regimes in nine jurisdictions warns us to proceed with caution:

I have a clear guideline here, and this is the guideline between competent patient and non-competent patient. All the laws in the Netherlands and in Belgium started with competent patients. Then, after a while, they began this argumentation about justice and non-discrimination, and slowly but surely, non-competent patients were creeping into the equation as well.

I find it very worrying if you want to make sure that there is no abuse. If you allow non-competent patients to get MAID, I think this is when you open the door to abuse.

Journalist Barbara Kay, in her February 13 article, summed up the message Bill C-7 delivers to the disabled community succinctly:

. . . society puts a higher value on “dying with dignity” than living with dignity, even with greatly diminished independence.

The article quotes David Shannon, who became quadriplegic following a spinal cord injury in a rugby scrum at age 18. An Order of Ontario and Order of Canada recipient, Shannon writes, “I’ve loved and been loved. My proudest accomplishment is that I lived.” He asks, “Why is there not the promotion to pursue one’s autonomy?”

Colleagues, we should be doing a deep exploration of palliative care in this country to find ways to improve it and extend the enjoyability of life, not end it. Dr. Trudo Lemmens and Leah Krakowitz-Broker summed it up as thus:

When faced with debilitating pain, financial hardship, or the prospect of lingering in institutions without proper care, many may welcome MAID as a solution. But it seems unconscionable for governments to prioritize state-financed MAID, rather than putting resources into ensuring access to proper care and offering people a reasonable quality of life. In fact, expanding MAID is giving our health care system an all-too-easy way out.

As I was preparing for this final speech at the conclusion of third reading debate on Bill C-7, I felt the spirit of our former colleague Senator Tobias Enverga, Jr. He was a devout man of faith and the proud father of three beautiful daughters. He would have taken every opportunity to speak at every stage and on every amendment, and certainly on this final concluding debate. His booming voice would have filled the entire chamber with or without a microphone.

In memory of our dear colleague, it seems fitting to quote his impassioned words from his third reading speech on Bill C-14:

 . . . my belief is that if we show our patients compassion and love, and offer the right treatment options for palliative care, chances are we will not see anyone asking for death.

He quoted Pope Francis, who said, “No human life exists that is more sacred than the other . . . .”

He and I voted differently on Bill C-14. I thought it better to vote to have a federal framework for medical assistance in dying in place in the hopes that the provinces would implement MAID with good safeguards and believe the promise of a thorough, five-year review that would address the importance and need for good palliative care. Senator Enverga voted against Bill C-14, stating:

Honourable senators, I dread having to make a decision between a greater or lesser evil. But if we as legislators are to select one, please do decide on the lesser evil before us. I maintain, by allowing for this to take place, we are giving up on our vulnerable, no matter how many well-intended yet non-committal statements we make about working towards better palliative care in our great country.

Well, dear colleague, you were right to caution us then. Palliative care is under attack, and some institutions are now having to compete for funding with MAID in some parts of our great country.

The five-year review has not been undertaken, but we are nonetheless being asked to pass another bill that removes safeguards and expands MAID eligibility.

Senators, many of us, if not all, have loved someone who has suffered and is in the twilight of their years. In my case, my mother has been in long-term care for nearly a decade due to her advanced dementia. Her memories are shattered into fragments, some perhaps lost forever. Though I have to introduce myself as Yonah’s friend, and she may not always be responsive, I often find myself getting lost in her smile and the twinkle of her eyes. The messages conveyed in them mean far more to me than I can express openly here in the chamber.

Had she chosen to end her life at the onset of this terrible disease, the years filled with smiles and laughter, tears and twinkly eyes would never have been — years that have become more precious to her, my family and the loving care team at Lakeview Long Term Care Home who has become an extension of our family.

Thinking of the late Senator Enverga, Gabrielle Peters — one of millions of Canadians living with disabilities who poured out her heart and pleaded with us to reject Bill C-7 — and my mother, who continues to teach me that dignity is not something that leaves you no matter what world you find yourself in, I will not be supporting Bill C-7.

Hon. Mary Jane McCallum
[16:04]

Honourable senators, I rise today to speak to third reading of Bill C-7. In a meeting I had with a chief yesterday, he said, “We have ugly politics on the reserves, but at critical times —” referring to funerals, “— we bury the hatchet and we work together.”

Colleagues, where do I come from when I speak to you, one senator to another? I don’t look at education or degrees, at privilege or at hierarchy. My main responsibility is to get First Nations and the disability community’s concerns on Bill C-7, at their request, on the record and remain true to the people who have shared their lives and stories with me.

At the same time, I also remain true to myself and my continuing connection and grounded experience with community-based holistic health care to ensure that the populations that have been ignored, unheard and misrepresented and those people under threat, are heard.

The question of how I work, as a First Nations senator, within the archaic political system of a dominant culture in Canada, which is one grounded on racism, while maintaining our truth and culture as First Nations, has been a 500-year-old conflict among First Nations peoples. This system continues to impact negatively on autonomy: questioning the sovereignty of First Nations. We haven’t addressed the issue of racism in crucial institutions, including our own, for racism does not go hand in hand with change.

It has been a struggle to continually see First Nations issues marginalized and not properly considered in legislation and not give up hope that one day our concerns will be addressed seriously and justly on every single bill that hits the Senate floor.

Honourable senators, The Tyee July 8, 2019, article, “The Not-So-Hidden Role of Racism in Canadian Politics” by Andrew McLeod quotes Tanya Clarmont, who is Teme-Augama Anishnabai:

When you don’t see yourself reflected in the system at all, it’s hard to feel motivated to participate. But at this point I think we need to be in there making ourselves heard and impacting the outcome.

She is quoted further in the article:

It can be really challenging to step into a space and participate in a governance structure that literally has legislation that’s based on you because of your race.

When you live in a country that has race-based legislation, it’s hard to feel there’s a space for you to step into and influence that structure. It feels overwhelming even.

Honourable senators, First Nations, the disability community, the LGBTQ2 community, the medical doctors, nurse practitioners and nurses have not been adequately consulted, so their voices and protection are not in this legislation.

Today I speak to you from the margins as the populations and the issues I continue to bring forward have no voice in this bill.

While most of the senators are speaking on behalf of people who may consider MAID, I speak for the people who want to be excluded from MAID.

In the Winnipeg Free Press article on February 12, 2021, entitled “Ottawa to define ‘prior consent’ through dialogue with Frist Nations,” Mr. Lametti states:

From Canada’s perspective, free, prior and informed consent is about self-determination, respectful two-way dialogue and meaningful participation of Indigenous Peoples in decisions that affect you, your communities, and your territories.

Lametti said that it’s about having a consensual and informed relationship between Indigenous and non-Indigenous people in Canada. “It touches upon all the other aspects of the declaration, [UNDRIP], and about our relationship.”

It hasn’t been done in the past, and that’s one of the real vestiges of colonialism, that’s still exists in such a wide variety of sectors.

Including Bill C-7.

In the article, Lametti says his view of free, prior and informed consent is that “you try to get to yes, and you do that through dialogue.” Yet Bill C-7 ignores the process toward self-determination, consent and the right to consultation for First Nations. It should be noted that many First Nations are part of the disability community. First Nations and the disability community want to be part of Canada, to finally experience real connection, but cannot do so at the cost of their voice, autonomy, authenticity, freedom, spirit and power. This casual indifference is structural and systemic in most bills and will make self-determination impossible for many years.

Colleagues, yes, this is criminal law involving the health sector. Research by many scholars has established that racism is endemic in the health sector.

In regard to the forced sterilization of women, it was established that there was coercion by nurses, social workers and physicians while they were at their most vulnerable. We saw this same racism toward First Nations, Métis and Inuit women in the hospitals of Quebec, Manitoba, Saskatchewan and B.C. There was no opt-in or opt-out for their mistreatment because of racism and the power differential of providers.

There’s been little structural change, despite this well-documented racism. These will be some of the same providers working with, interpreting and applying MAID. Do we really believe they can suddenly change?

With Bill C-7, we are talking about the real potential of taking lives that are not meant to be taken.

Honourable senators, it’s been made evident and has been acknowledged by many senators that adequate data is not available for the 25% of racialized Canadians. We also have no data, be it qualitative, quantitative or Indigenous knowledge, on the multiple types of health care professionals involved in this delicate matter who will handle this in their clinics, offices and nursing stations. We do not sufficiently know their readiness, concerns, preparation, et cetera.

I would like to quote from two letters from Canadian doctors in response to this debate. Senator Plett had quoted Dr. Thomas Fung, who stated:

I am very grateful for your voice at the Senate, and for taking to heart the concerns that Indigenous voices, people with mental health & disabilities, and healthcare professionals raise about the irreparable damage that Bill C-7 will have in its current form.

. . . please be consoled that my friend with schizophrenia thanks you. He said that if MAiD was available at his worst, he would not be here today. He is glad to be alive, having accomplished a PhD in Math. He shares his love of reciting poetry in public to the delight of many.

Another patient of mine had indicated to his family that he wanted MAiD 1.5 years ago when he entered long term care. He didn’t qualify because he was not near death. . . . Had Bill C-7 been in effect, his life would have been cut short, and he would have been deprived of the opportunity to make peace with himself. He died comfortably of natural causes this week.

These are some of the reasons why I reject Bill C-7 in its current form. I will also continue to work with Indigenous advocates to hold the Government of Canada accountable for not having allowed their voices and concerns to have any meaningful influence in policy development & health delivery. Much work is needed ahead.

A second doctor stated:

Thank you for speaking out in support of physicians’ conscience rights.

I am deeply concerned about the precedent and direction of forcing professionals to act contrary to their judgment and conscience. Even though it was pointed out in the debate that there is nothing in the Criminal Code that compels an individual to provide or to assist in providing MAiD, neither is there anything that prevents another body such as the College of Physicians and Surgeons of Ontario from compelling their members to do so.

Colleagues, it is so important to hear the perspective of health professionals.

Honourable senators, the GBA used for this bill was largely data from other countries, and the main recipients were older White males with college degrees. Is this a bill for a privileged class of people? As one senator stated, we don’t know if MAID will be applied equally and fairly across all demographics. What will happen if it is applied inappropriately through coercion? How will the stats be documented for inappropriate application of MAID?

Colleagues, society has largely been brutal to Indigenous women. I was in northern Manitoba on a dental clinic two weeks ago, and I had several young women come to me to express concern about coercion to get the COVID-19 vaccine. The concern was for themselves and their elders — the elders who were fragile. It is always the women who take the brunt of giving voice and action, and the violence that comes with it. I can’t imagine what they would do if MAID were offered to their dad and grandfather. It isn’t in their culture, and MAID would be a violent intrusion. Research has shown that for First Nations self-determination to be successful, it must address the question of violence against the women.

I want to share how I envision a just version of Bill C-7 concerning First Nations, Métis, Inuit, non-status and the disability community. It would involve a fulsome consultation with all of the above, including all the relevant health care providers. This would allow all of their concerns to be stated.

Colleagues, when it comes to this bill, the government didn’t fulfill its sacred responsibilities. I can’t be a part of this repeated process where we expedite a bill to get it passed at the expense of a large group of Canadians.

Last week, I was interviewed by the Assembly of Manitoba Chiefs on Facebook Live. I had spoken to the audience about the responsibility of the Senate to balance the representation by population of the House of Commons by representing and protecting the rights of Canada’s marginalized and First Nations, Métis and Inuit people. The question asked of me was: Should Canadians still believe and trust the Senate, given recent obvious issues that have been propagated on Indigenous people? How would you answer that question?

Thank you.

Hon. Michael L. MacDonald
[16:16]

Honourable senators, I rise today to speak again on Bill C-7. This is the third time I’ve spoken to this bill, which is a first for me during my tenure in the Senate. I guess that speaks, at least for myself, to the seriousness of the business before us.

I want to put on the record that I speak from the secular space of citizens, with no theological motivations guiding me. I consider myself to be a libertarian, but I’ve always understood that I must temper that disposition with the collective interests of others, especially those who are less fortunate in life.

When Bill C-14 was passed in 2016, a “reasonably foreseeable death” was established as the benchmark of eligibility for MAID. That is a fairly broad term, and while I did not vote for Bill C-14, I never took issue with someone dying and in constant pain, with a sound mind, being permitted to legally shorten the length of their agony with the appropriate medical assistance. I have empathy for MAID in principle, but we opened a door in Canada that had never been opened before, and I was concerned that Bill C-14 was opening the door too wide and that Canada would drift in a direction neither intended nor desired by most Canadians.

Bill C-7 removes the 10-day waiting period for people who get approved for MAID. Last year, over 280 Canadians changed their mind in that 10-day period. These Canadians would all die now under Bill C-7. Is this indicative of improved legislation? This tells me my concerns were justified. This one factor alone is reason enough not to support this bill.

However, the government guaranteed Parliament there would be a five-year review of Bill C-14 so Canadians would be assured that the procedures and protocols that defined MAID were not leading to undesirable results. As well, Canadians naturally assumed a review would be completed and studied before further initiatives would be forthcoming on the MAID file. This promise and truly essential report is nowhere to be found; yet now we’re being asked to make changes that would sharply increase the number of citizens who are eligible for MAID.

How did we find ourselves in this position? A judge ruled that elements of Bill C-14 were unconstitutional and that the federal government has to deal with it. It doesn’t matter who the judge was or from what province the decision originated; a judge legitimately makes rulings of this nature according to their understanding of applicable law. Although I think our courts have made and will continue to make poor decisions from time to time — and I am not claiming this is the case in this instance — ultimate responsibility for managing this issue of life and death rests solely with the federal government, not the court. If Bill C-14 was so fatally flawed, why then was it proposed and passed in the first place?

The government pretends it has no choice in the matter, but its hands are not tied. Referring the issue first to the Supreme Court is a reasonable and responsible thing to do in the present circumstance; asking Parliament to immediately pass Bill C-7 is not. After all, if Bill C-7 is as constitutionally flawed as Bill C-14 was — and apparently, that is the case — what does that say about their handling of this issue?

Judges, like senators, are appointed. There is a maximum of 105 senators and, as you may have noticed, we don’t always agree on everything. Most people, including most politicians at all levels, are unaware of how many federal judges there are in this country. If you add them up — Supreme and Appeals Courts, both provincial and federal, Queen’s Bench Trial and Family Courts, Tax Court, et cetera — there are over 900 full-time judges and almost 300 supernumerary judges in Canada, which is over 1,200 federal judges in total.

Does anybody expect that 1,200 judges should agree about everything? I certainly don’t. I expect most senators can name 20 out of the 338 members of Parliament. I wonder how many people in this country, or even Parliament, could name 20 federal judges out of 1,200. Our appointed judges exercise a lot of influence, but citizens know precious little about them or their personal beliefs that shape their thinking and decision making.

However, I’m not criticizing the court or its composition, but merely pointing out we should cultivate some perspective when it comes to the court and how we respond to it as an institution. A judge is simply a lawyer who was appointed to the bench. Lawyers are just like the rest of us; some appointments to the bench are stronger and more merit-based than others. Judges often have some political bias, and that’s fine, but let’s stop telling ourselves that once lawyers are elevated to the bench, they magically become our infallible robed superiors. Neither legislators nor judges have yet to achieve that level of perfection.

We are a country with a rule of law, and we have to honourably deal with decisions of the court. I understand that and I don’t question the integrity of the court. But colleagues, we are not obligated to meekly acquiesce to all of their decisions, and neither is the government.

Some of you declare that we can’t go back. I concur with that sentiment. That doesn’t mean we should rush to judgment either, nor do we have to. Does the Trudeau government actually believe that the ruling of 1 judge out of 1,200 — in a country of over 37 million people — is so perfect that before drawing up new legislation, they couldn’t have first referred the issue to the Supreme Court for a final ruling? Surely the Supreme Court is not so busy during the pandemic, nor the subject matter so unimportant, that they haven’t the time to look at it. The government should have appealed this decision before considering any new legislation, and we should still insist that they do so. After all, isn’t that why we have a Supreme Court?

As with Bill C-14, we’ve heard repeatedly during this debate a lot of conversations revolving around constitutional assessments of both Bill C-14 and Bill C-7. While I have intellectual interest in these topics, they are not really salient to our decision-making process. Senators are not litigators. The Senate is not a court of law. We do not adjudicate; we legislate. We can have a constitutional opinion on anything we like, but we shouldn’t presume to declare how the court will probably rule. This work is best left — indeed, must be left — to the court itself.

We should instead be concentrating on ensuring that the security and right to life of the most vulnerable in our society is not compromised, nor threatened by the decisions imposed on society by the government. I believe that to be a much more important goal in the long term, certainly more important than short-term responses to esoteric opinions about arcane legal arguments.

When I spoke to Bill C-7 at second reading, I raised but two issues: the lack of scientific data in Canada regarding MAID protocols and the terrible circumstance that Bill C-7 creates for the disabled. I confess, I had no idea that asking for reassurance that people are unknowingly suffering under these protocols would apparently be so offensive to some in the medical establishment.

I was very disappointed in the way a serious witness at committee was attacked in a concerted effort to discredit his testimony regarding the protocols, and the dismissive tone shown to others who disagreed with Bill C-7. However, to use a military analogy, when the anti-aircraft guns start firing at you, you can rest assured you are over the target.

As I said at second reading, I have no medical expertise and don’t profess to have any insight regarding protocols, but the questions I raised then still remain unanswered. I just want the science to tell me what is happening. Visual observation of a MAID procedure surely has some value, but neither anecdotal stories nor condescending lectures in the Senate are acceptable substitutes for proper scientific analysis — something that is essential if all involved in these matters are to make informed decisions on matters of life and death.

If Bill C-7 supporters are so confident regarding the protocols, why don’t they propose modifying debate with an amendment to include an automatic and mandatory autopsy for all who are given access to MAID? The failure to do so now appears to be a huge oversight, and I hope this deficiency will be addressed as soon as possible. I have great faith in our medical professionals and modern medical science. Let’s stop the educated guessing and let them get the answers we need.

Last week, at third reading, Senator Dalphond suggested we should look at how the Benelux countries manage MAID. So I looked at the Netherlands, since it is a pioneer in this field, and I thank the senator for his advice, for what I found out should be a concern for anyone who cares about our truly most vulnerable.

In 2003, the first year of MAID in Holland, the number of MAID deaths totalled 1% of total deaths in the country; the same 1% Canada recorded in 2017, our first full year of MAID. But in 2017 in Holland, after 14 years of MAID, over a quarter of all deaths were medically induced. I was never great at math, but a quarter of all deaths is still 25%, and I find it disturbing that such a high number of manufactured deaths could be considered acceptable under any criteria.

Theo Boer is a Dutch professor of ethics and was for many years a member of a review board in Holland that was set up to monitor and review euthanasia cases. Each board has three members: a doctor, a lawyer and an ethicist. Mr. Boer said:

The process of bringing in euthanasia legislation began with a desire to deal with the most heartbreaking cases — really terrible forms of death. . . We have put in motion something that we have now discovered has more consequences than we ever imagined.

Look closely at the Netherlands because this is where your country may be 20 years from now. Mr. Boer is an honourable, professional, well-informed, level-headed voice of experience speaking to us, and we should heed his advice. Children as young as 12 can now seek euthanasia under Dutch law. Is this really the path forward we want our country to take?

I do want to address the amendment brought forward by Senator Wallin. Although it does appeal to my libertarian values, I didn’t vote for the amendment, but that illustrates my lack of faith in this government to manage this issue properly, not any resistance to the idea of advance requests for medical help regarding people who fear losing their mental capacity. It is an idea worth investigating, but it would require very strict protections to ensure our people weren’t offered MAID prematurely, especially if there’s a potential financial windfall for someone when somebody else dies. Don’t kid yourselves, colleagues; that dark dynamic will often be in play. That’s the real world we live in today.

My greatest worry is the plight of the disabled with the passage of Bill C-7. They need support, but so much is lacking, and they rightfully feel threatened by this legislation.

I think of conditions in my own home province. Claire McNeil, a lawyer for the Disability Rights Coalition of Nova Scotia, appeared before our Senate committee. She told us:

The meaningful access to the disability support services envisaged by Bill C-7 doesn’t exist in Nova Scotia currently. . . those living in poverty who have no other resources or abilities to meet their needs and find themselves unnecessarily institutionalized in Nova Scotia in homeless shelters, hospitals, jails and other provincially funded facilities. This is well documented.

Ms. McNeil continued:

On the other hand, there are many other people who are not so institutionalized who find themselves facing extremely long delays, in some cases decades-long delays, and an indefinite wait list in order to obtain the community-based services and the kind of disability support services envisaged by this bill that will allow them to live in the community.

She concluded:

Nova Scotia might be an extreme example of this problem, but I don’t think it’s unique [in Canada]. . . The notion of autonomy that seems to underlie this bill is a fiction in the absence of true equality and access to the necessities of life.

Colleagues, these are the real-life circumstances under which people with serious illnesses and disabilities are taking decisions to end their lives.

The management and costs of hospice and palliative care facilities, and the provision of assisted care in Canada are provincial responsibilities. How many billions has the federal government squandered over the past year on poorly directed subsidies and hastily designed programs during the pandemic? Think of the money that could have gone instead to help provide the disabled with the level of care and assistance they require and deserve.

The Trudeau government claims a national standard will help strengthen these services and alleviate concerns people may have about Bill C-7. How can they pretend to champion and enact a national standard across this country when they don’t control the administration of health care in the provinces? There is no national standard. They’ll just dump the mess they created in the lap of the provinces and walk away.

Last December, I read an article in the Halifax paper written by David Shannon, a practising lawyer from Thunder Bay. I guess it was his arguments that opened my eyes about Bill C-7. He is a former Human Rights Commissioner and a member of the Orders of Ontario and Canada. He has parachuted from a plane at 25,000 feet, been to the North Pole where he planted an accessible sign, has acted on the stage and screen, and has done it all as a quadriplegic in a wheelchair since suffering a disabling injury when he was 18 years of age.

I don’t know David personally, and he has never met me, but I want him to know he has become a hero of mine. He is a living testament to perseverance, courage and the triumph of the human spirit. In spite of his many accomplishments, he insists his greatest achievement is that he lived. But he would be the first to tell you he couldn’t live his life every day without proper support.

Mr. Shannon tells us:

There is a cultural continuum towards acceptance of the demise of people with disabilities. We are told by our society over and over again that we are not of value. Our life is just not worth living.

If Bill C-7 passes, words will be enshrined in law, signed by the Parliament of Canada, essentially saying, “Go ahead. Kill yourself. We will help because living with a disability must be totally unbearable.” . . .Yet no one seems to care.

I’m pleased to tell Mr. Shannon that he couldn’t be more wrong about people not caring. Millions of people care. Millions of Canadians care. Millions of people outside of Canada care. My neighbours, my friends and my family care. I care. What I have learned over the past three months about Bill C-7, and how it ignores the disabled, has only hardened my position. I will go over Niagara Falls in a barrel before I vote for Bill C- 7. Although if I went to the Niagara Escarpment and attempted it, I suspect I might discover David Shannon beat me to it.

The late Bill Buckley insightfully noted that when it came to governance, he would rather be ruled by people chosen from a random page in the Boston phonebook, than the faculty of Harvard University.

The mentality that this government and its camp followers display in obsessively pushing their agenda with this bill, while studiously ignoring the increased vulnerability of the disabled community, is a prime example of the blinkered mindset to which Buckley was definitely referring.

Every single reputable and recognized organization that speaks for the disabled in Canada and abroad is vehemently against this bill. How can we ignore that elephant in the room? I certainly won’t.

The Hon. the Speaker pro tempore
[16:31]

Senator MacDonald, I’m sorry, your time has expired.

Hon. Marilou McPhedran
[16:32]

Honourable senators, as we come to the close of our debate on Bill C-7, I wish to acknowledge that the Parliament of Canada is situated on the unsurrendered territory of Indigenous peoples. I am not going to move an amendment to Bill C-7 today. However, I do wish to take this final opportunity to place on the public record some concerns and observations, for future reference, as this deeply flawed bill morphs from a draft that has worried and galvanized every single national disability rights organization in this country, and been the catalyst for the rare occurrence of three independent UN experts issuing a joint report on the discriminatory nature of this hasty, ill-considered bill.

I want to express appreciation for the quality of our deliberations on this bill and to all honourable colleagues who have presented thoughtful and concerned speeches and amendments adopted here, in the hope that they will be incorporated before this bill becomes law. I wish to extend kudos to Senator Petitclerc for her deft sponsorship of this bill.

I speak today, still convinced that Bill C-7 really should not be before us today. But it is, because the government consciously chose to ignore the expertise of disability rights leaders, representing hundreds of thousands of people living with disabilities, and refused to appeal one lower court decision and refused to conduct the legally mandated review of the current law before rushing ahead with this bill.

The coalition includes British Columbia Aboriginal Network on Disability Society, Council of Canadians with Disabilities, Canadian Association for Community Living, the DisAbled Women’s Network of Canada, Inclusion Winnipeg, Community Care Manitoba, the Arch Disability Law Centre, where I actually began my career as a lawyer, and People First of Canada.

The UN and Canadian disability rights experts have spoken to us in one voice, clearly alerting Canada that this bill is highly likely to produce dangerous and discriminatory situations that will happen to people living with disabilities, far from the notice of this chamber, far from our being able to do anything about their dire situations — unless we decide collectively that senators are not going to look away silently once this bill becomes law.

You will recall that the disability rights coalition has now grown to over 90 organizations. Some of us have already given voice in this chamber to the carefully considered objections conveyed by the coalition and by experts from Indigenous communities, so ably conveyed by Senators Anderson, Boyer and McCallum in particular. Today I want to look briefly, but more closely, at the ignored advice from the three independent UN experts — the Special Rapporteur on the rights of persons with disabilities, the Independent Expert on the enjoyment of all human rights by older persons and the Special Rapporteur on extreme poverty and human rights — all identifying the human rights violations likely to occur when Bill C-7’s expanded access, which singles out people with disabilities who are not dying, becomes the law of this land. Yes, disability rights organizations will have lost this round when Bill C-7 becomes law. But this is not the last time that senators will be tasked with addressing the discriminatory after-effects of Bill C-7.

We are charged to uphold the rule of law in Canada, including the rights protected in the Universal Declaration of Human Rights, in the UN Convention on the Rights of Persons with Disabilities and in the International Covenant On Civil and Political Rights — all accepted by Canada as essential treaties in our adherence to international human rights law.

The UN experts conveyed that the bill “. . . appears irremediably entangled in ableist assumptions about people with disabilities.” They elaborated that:

. . . the eligibility criteria set out in Bill C-7. . . may be of a discriminatory nature, or have a discriminatory impact, as by singling out the suffering associated with disability as being of a different quality and kind than any other suffering, they potentially subject persons with disabilities to discrimination on account of such disability.

Please allow me, once again, to have the honour of conveying in this chamber the collective voice of the disability rights coalition, representing hundreds of thousands of people living with disabilities, and the voices of Canadians caring for those they love who are living with disability and for whom they are desperately worried.

Colleagues, I was honoured to serve as a chief commissioner for human rights in Saskatchewan, and last evening I received a note from Ontario’s former chief commissioner of human rights, Catherine Frazee, whom I have known, worked with and greatly admired for many years. Professor Frazee wrote about the significance in law of the Convention on the Rights of Persons with Disabilities, the CRPD, reminding that the CRPD,

“. . . is not an abstract set of aspirational principles. It is a multilateral treaty to which this country knowingly committed itself.”

While respecting the right of each senator to decide, Professor Frazee wrote last evening, from her perspective as an esteemed disability rights defender who has lived her entire life with a disability, of the impact of senators voting for this bill and she said:

Your vote will weigh heavily against us as we endeavour in future litigation to claim its authority in Canadian and international law. I plead with you, do not permit your vote, on the record, to become weaponized against Canada’s disability rights movement. Know that others will make use of your decision in ways that you do not actively intend. If you absolutely cannot and will not vote to defeat Bill C-7, then please, please, abstain from the vote.

In closing, dear colleagues, please consider this young leader’s analysis. She said: “Bill C-7 is anti-working class, racist and ableist.” These are the words of Sarah Jama of the Disability Justice Network of Ontario as she spoke at a virtual news conference last week while we were debating this bill. She went on to say the bill:

. . . makes it more accessible for people with mental health disabilities to kill themselves as a form of treatment without making mental health supports free.

As we work our way through the challenge of recovering from this pandemic, we need to understand so much better the connection between poverty and the denial of rights. We need to continue, as so many of us have done already, to raise our voices as strongly and collectively as we possibly can, around issues like guaranteed livable income and anti-racism education, and the gathering of data and disaggregation of that data on the basis of racialization and social exclusion.

Ms. Jama is a 26-year-old community organizer from Hamilton, Ontario, who is Black and uses a wheelchair. She was called as a witness before the Senate Legal Committee, so graciously and skillfully chaired by Senator Mobina Jaffer. Ms. Jama reminded senators that Joyce Echaquan, a 37-year-old Indigenous woman, died in a Joliette, Quebec, hospital last September after she filmed staff making cruel and racist comments about her. Senator Pate reminded us by comparing Ms. Echaquan’s suffering to the compassionate end-of-life care provided in the same hospital on the same day to a much more privileged White man.

Ms. Jama said: “I don’t want this in my future.”

Nobody in this chamber wants such exclusion and killing discrimination in Ms. Jama’s future, but it is with a wrenching sense of irony that I close by observing that Bill C-7, as law, will contradict the promise that Canada has already made in the CRPD.

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disability on an equal basis with others.

Colleagues, this bill dresses up discrimination and calls it a right, but that does not make it so. This bill is discrimination on the ground of disability, writ large.

Thank you. Meegwetch.

[16:43]

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

I agree with what Senator Munson said last evening when he said it’s not always easy to talk about medical assistance in dying, and I would suggest to you that many people are uncomfortable with the whole issue of dying, and particularly MAID.

I wish to begin by thanking my colleagues for their thoughtful deliberations on this bill. Colleagues have shared very poignant personal stories and engendered much thought-provoking debate, informed by their individual experience, their conscience, and their study and consultation on this bill. Debate was focused on fundamental questions of preserving personal autonomy and on protecting life, particularly for those who are vulnerable in our society. I would like to pay particular thanks to the sponsor of the bill, Senator Petitclerc, who did an excellent job. I would also like to thank our progressive group star, champion and expert, Senator Dalphond, who patiently answered all of our questions when our caucus was discussing Bill C-7.

The Senate has a long history of thoughtful debate on both issues of death and dying, including medical assistance in dying, MAID, palliative care and the protection of vulnerable Canadians, as well as on issues of our individual and collective rights under the Canadian Charter of Rights and Freedoms. In fact, the final report Of Life and Death of the Special Senate Committee on Euthanasia and Assisted Suicide, in June 1995, grappled with these same issues. At that time, senators, like the Canadian public, were deeply divided on issues of medical assistance in dying, but senators were unanimous in the need for the protection of vulnerable Canadians, the need to increase the availability of integrated hospice palliative care to support those who are dying, and the need for the recognition of advance care directives to guide substitute decision makers in making health care decisions for a loved one who could no longer speak for themselves.

Honourable senators, that study was in 1995, over 25 years ago. That 1995 Senate report had a lasting impact in several ways. It was the first national report to bring a consistent glossary of terms, which was then used in medical ethics and health law classes. It led to several national initiatives on improving palliative care and recognizing advance care planning. It led to important supports such as the compassionate care benefit under Employment Insurance. Perhaps most importantly, it set the stage for a national debate that took place over many years. In fact, many of the required safeguards for MAID that were outlined in the 1995 report form part of the current safeguards under the Criminal Code.

In June of 2016, 21 years after that 1995 report, MAID was decriminalized through Bill C-14, An Act to Amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). The bill currently before us is primarily about removing the concept of reasonably foreseeable death as an eligibility criterion, and has been driven by the Superior Court of Quebec Truchon decision. It has evolved through a process of extensive consultation with Canadians. Honourable senators, those of us from Nova Scotia are very familiar with the Audrey Parker case.

As parliamentarians, regardless of our personal beliefs and feelings about MAID, we represent all Canadians, with many varied opinions and views on the issue. The courts have ruled that MAID is a right for Canadians, and as legislators we must adhere to this ruling and view the legislation and the issue through this lens. Our task at hand is to ensure that this bill meets the requirements laid out in the Truchon decision, respecting the rights of individuals while ensuring adequate safeguards to protect the most vulnerable among us.

As we protect those most vulnerable in our society, our challenge is to ensure that MAID is not a fallback position, nor a default decision, because individuals do not have equitable and timely access to adequate supports to address suffering. We need to ensure that poverty, homelessness, systemic racism or a lack of disability or health care supports do not lead individuals to believe that MAID is their only option.

As Dr. Neilson, President of the Canadian Psychiatric Association, explained before the Standing Legal and Constitutional Affairs Committee during the pre-study of Bill C-7 on November 23, 2020:

. . . equitable access to clinical services is an essential safeguard to ensure that people do not request MAID due to a lack of available treatments, supports or services and as an alternative to life.

Other witnesses before the Senate committee emphasized how social determinants of health, including poverty and lack of adequate housing, significantly and negatively affect adequate access to palliative care and other forms of health care, and risk leaving those most marginalized without meaningful alternatives to MAID. Herein, as parliamentarians, we have a challenge, as many of these social, economic and health supports lie within the constitutional responsibility of our provinces to administer. Yet this does not absolve us of all responsibility.

We know there is a lack of services in many parts of Canada. This lack of services is especially noticeable for persons with disabilities in many communities. The current crisis with the lack of affordable housing that is occurring in much of this country has meant even more Canadians in inadequate or unsafe housing, young people with disabilities forced to reside in long-term care homes with those who are much older, and a lack of supportive housing and community supports in Canada.

One witness before the committee, Jonathan Marchand, Chair, Coop ASSIST, Quebec cooperative for independent living, stated: “ . . . death without dignity doesn’t exist without life with dignity. In speaking to the concerns of people with disabilities, Mr. Marchand continued:

There can be no death with dignity and freedom of choice as long as we are forced to live in institutions, made to feel like burdens, while we face discrimination and systemic violence at all levels.

MAID has been a fundamental shift in our society, and like any fundamental shift it requires close study and analysis to ensure that legislative intent is appropriately implemented. This is never truer than when dealing with fundamental changes that have such permanent consequences. This debate is not just a theoretical debate of rights, but a very human debate that affects the lives of all of us — our neighbours, family, friends and our fellow Canadians.

Honourable senators, we must address the gaps in data and how the current MAID regime may adversely affect our vulnerable populations. We must better understand the scope and adequacy of services offered to those receiving MAID. For example, there are still many, including health care providers, who think that palliative care is only available and provided in the last months and weeks of life when curative treatment is no longer available. As a result, palliative care services are often sought too late, limiting the ability of those services to prevent and relieve suffering. By contrast, a palliative approach to care can help people early in their illness. It can start a diagnosis when treatments are taking place, and there still may be years left to live.

According to the First Annual Report on Medical Assistance in Dying in Canada released in July 2020, of the persons who received MAID in 2019, 82% reported receiving some level of palliative care. However, 31.4% of those receiving MAID received palliative services for less than a month, and half of them for less than two weeks. A further 16.2% did not receive palliative care services at all. Furthermore, the report notes that the data does not speak to the adequacy of the services offered. Were these individuals connected to services early enough in their illness? Services differ across Canada, with rural and remote areas often not having the same level of access to services. Wait times can vary greatly across the country. What impact did this have on the decisions of individuals to choose MAID? Were services offered in culturally appropriate ways? Have we adequately ensured that the needed supports are there to ensure that the decision for MAID is truly based on free, prior and informed consent?

Honourable senators, we need further data to ensure the provisions provide adequate protection. I am particularly struck by the need to better understand the effects of the amendment by Senator Wallin with regard to advance consent. Of course, I support advance care planning and the process of determining who will speak for me if I can no longer speak for myself. However, I believe that more work needs to be done to understand the link between advance care planning directives and advance consent for MAID, as I said in my speech on that amendment.

While I voted against Senator Wallin’s amendment, I respect the work that she continues to do on the issue of dementia. Therefore, I applaud the motion in amendment by Senator Tannas that a comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application must be undertaken by a committee of both houses of Parliament within 30 days of Royal Assent. We were to have had a parliamentary review of Bill C-14, and that, unfortunately, has not occurred. The debate and discussion of MAID should not end with the passage of the bill. I hope that the other place accepts this amendment.

Regardless of whether the other place accepts Senator Tannas’s amendment or not, I believe that the Senate should initiate further study of this bill, as suggested by Senator Gold. As I referenced at the beginning of my remarks, the Senate has a long history of contributing to public policy as it relates to this issue. Having been a member of several of the committees that have studied these issues, I rose on a number of occasions to voice my strong support for the efforts of those who work to help dying Canadians live life well until the very end, whether or not they choose that end under MAID.

Honourable senators, I will be supporting Bill C-7. I will be doing so to respect the wishes of those who opt for the choice of receiving MAID under what I believe is a thorough assessment system by medical personnel that will allow for dignity in dying. Like Senator Moodie, I agree that MAID will likely be a hotly debated and contested topic for many years to come. I also believe that there will be more court challenges related to MAID in the years ahead.

Honourable senators, thank you for your many impassioned and personal stories. I listened carefully to them. In fact, I reread many of them. Everyone has shown this legislation the seriousness it deserves. Thank you.

The Hon. the Speaker pro tempore
[16:57]

Honourable senators, are there any other senators who wish to speak in the final general debate?

If not, the question is as follows: It was moved by the Honourable Senator Petitclerc, seconded by the Honourable Senator Gold, that the bill, as amended, be read the third time.

Those in favour of the motion who are in the Senate chamber will please say, “yea.”

The Hon. the Speaker pro tempore
[16:58]

Those opposed to the motion who are in the Senate chamber will please say, “nay.”

The Hon. the Speaker pro tempore
[16:58]

I believe the yeas have it.

The Hon. the Speaker pro tempore
[16:58]

I see two senators rising. We will have a vote at 5:58. Call in the senators.

Hon. Brent Cotter
[18:15]

Your Honour, I’m requesting the opportunity to explain my abstention.

The Hon. the Speaker pro tempore
[18:15]

Briefly, yes.

Senator Cotter
[18:15]

Thank you. I’m essentially recording a protest abstention. I agree with and support the intent and content of the bill and would have voted in support if my vote had been necessary for it to pass. There’s a constitutional imperative, I think, for senators to protect the constitutional rights of citizens, and this bill with its amendments does so, in my opinion.

My abstention is a statement of my disappointment that the government has not made concurrent financial commitments to begin a meaningful process of addressing the living circumstances of the people whom I will simply call “more vulnerable Canadians.” In the most important decision rendered by the Supreme Court of Canada in the last 40 years, a unanimous Supreme Court spoke about the nature of Canada in the secession reference. The court quoted a submission from the Attorney General of Saskatchewan, and I quote it here, “The nation —”

The Hon. the Speaker pro tempore
[18:16]

Senator Cotter, I’m sorry, but you have to be quick. We’re allowed 10 to 15 seconds to give the reason why we’re abstaining.

Senator Cotter
[18:16]

Let me just say this, “The threads of a thousand acts of accommodation are the fabric of a nation,” and I think without the commitment that I was hoping my government could make, it frays that fabric. That’s disappointing to me. Thank you, Your Honour.

Hon. Kim Pate
[18:17]

I abstained because I believe it’s irresponsible of the government not to at least have conducted a review of Bill C-14 and simultaneously have employed its spending power to ensure national standards regarding the provision of equitable, non-discriminatory health care in this country. We’re proceeding in the absence of a plan to remedy intersectional inequities. Thank you, Your Honour.