Criminal Code

Bill to Amend--Third Reading--Debate

February 8, 2021


Hon. Chantal Petitclerc
[15:21]

Moved third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

She said: Honourable senators, it is a privilege for me to rise at third reading stage in support of Bill C-7, an act to amend the Criminal Code (medical assistance in dying).

As we begin third reading of Bill C-7, I would first like to recognize the work that we have done to date to study this legislation. During the pre-study by the Standing Senate Committee on Legal and Constitutional Affairs, we had an entire week of full-day meetings. We debated during three sitting days at second reading, and we held another round of committee meetings over three full days last week. In total, we have heard from 130 witnesses.

My gratitude goes to the chair of Legal and Constitutional Affairs Committee, Senator Jaffer, and to all members for their professionalism and commitment to give this bill the time and attention it deserves. Here we are now at third reading, which I have no doubt will include more thoughtful debate. I am proud of our collective work on this important piece of legislation, which raises hard and complicated issues.

Colleagues, I want to thank you and the witnesses that we heard for the questions asked and for the expertise shared. This thorough process has given me much to think about and took my reflection to a deeper, more comprehensive level. This is what sober second thought is really about; when you listen, challenge your own beliefs and let the critical process do its work. It is not always comfortable, but it is always worth it. I can say that I supported Bill C-7 at first reading, and I support it now with even greater conviction.

Bill C-7 is coming to us as a response to the quest of persons like Mr. Truchon and Ms. Gladu, and to allow Canadians a greater measure of autonomy in choosing the time and manner of their death when their suffering is intolerable, even if they are not approaching death.

In expressing his support for this fundamental aspect of Bill C-7, Jason LeBlanc, a caregiver and researcher who appeared at the Legal Committee, said:

What Bill C-7 does provide, and singularly so, is a way for more Canadians caught in intolerable and irremediable suffering to have access to a medically assisted death.

Professor Jocelyn Downie also expressed support for the removal of “reasonably foreseeable death” as an eligibility criterion.

The bill also reconciles this increase in autonomy with the equally important goals of affirming the equal and inherent value of all lives, regardless of illness or disability, and of protecting persons who may find themselves in situations of vulnerability. That can be any one of us at different times, but vulnerability is more prominent for those who need support and services than for the privileged few. We have a responsibility toward each other to ensure that Canadians are protected from premature death when they are in situations of vulnerability and when their quality of life could be improved.

Mr. Geoffrey Kelley, a former member of the National Assembly of Quebec, called Bill C-7 a “careful approach” that:

. . . attempts to strike a balance between the right claimed by some people to control their destiny and the necessary protection of vulnerable people and people living with a disability.

He also noted that “The search for this balance will always be a work in progress.” I agree.

I’m sure that there is more than one way to reconcile these objectives in a way that suits everyone. We all have personal values and experiences that influence the way we look at this bill and interpret the meaning of autonomy and vulnerability.

We cannot ignore the inequalities that exist in our communities and the challenges in accessing services and supports, which can contribute to suffering. Under a regime where MAID is not limited to those who are dying, this reality poses a difficult dilemma of whether to prohibit MAID until all resources and all supports are available, or to permit MAID in order to respect the autonomy of those who choose it freely as a release from intolerable suffering, with appropriate safeguards. Bill C-7 adopts the latter approach, which is, in my view, the right one.

I want to share a quote from Sylvain Le May, who has been living with spinal muscular atrophy for 50 years. He testified at the Legal and Constitutional Affairs Committee on February 3 and said the following:

I am advocating for expanded access to medical assistance in dying, since it is an individual decision. The question often raised by many participants, groups and associations is about the context in which the decision to seek medical assistance in dying is made. This is a question that needs to be asked, but within a broader context than this bill. . . . Furthermore, setting up a conflict between two rights, in this case the right to live with dignity and the right to die with dignity, amounts to favouring one right over the other. But all rights are equal.

Bill C-7 amends the Criminal Code and is simply designed to allow for a safe, expanded medical assistance in dying regime. I am not trying to brush aside the difficult issues associated with access to support and proper care. My goal is to remind everyone that, right now, we are studying a MAID bill specifically from the criminal law perspective.

While this bill is not the vehicle to guarantee that every Canadian has access to the care and supports they need to thrive, we can — and must — continue to push for real change when it comes to resources for persons living with disabilities, for our aging Canadians and for the vulnerable among us more generally. At the same time, I think we have to trust that the practitioners involved in MAID assessments are sensitive and have the competence to assess these realities. I firmly believe that we can protect and take care of each other without standing in the way of those who want to make the choice of MAID.

Changing our MAID regime from an end-of-life regime to one that is based on relieving suffering associated with a medical condition is a significant change, and we all recognize this. It seems very reasonable to me that this change in MAID eligibility has to be accompanied by minimum requirements to make sure no one receives MAID because they were unaware of an available treatment or support that could have improved their quality of life.

I listened intently during committee hearings and second reading, and I know that some of you are concerned about the safeguards proposed in the bill. Some think the new set of safeguards is too restrictive, some think they are insufficient and others are of the view that there shouldn’t be a two-track system of safeguards.

Witnesses also had diverse views on the safeguards. Mike Villeneuve, from the Canadian Nurses Association, told us that medical professionals in his association are of the view that the strict safeguards for cases where natural death is not foreseeable are “adequate and sufficient,” and he was supportive of Bill C-7’s approach.

The College of Family Physicians of Canada told us they were “generally supportive of recommended amendments,” including the need for a period of time to elapse before MAID is provided in cases where death is not foreseeable, and that the 90-day assessment period was a “reasonable . . . starting point.” And that is precisely what these safeguards for circumstances outside end of life are: a starting point, or minimum requirements.

Of course, in some cases, assessment of eligibility might take longer and a consultation with more experts might be advisable. We must trust our health care providers’ judgment and professionalism in assessing eligibility for MAID within clear safeguards that set out applicable minimum standards for all cases. The seriousness of ending a human life that was not otherwise coming to an end demands no less.

I also want to address where the proposal in Bill C-7 would stand compared to other countries’ regimes, as I know that is of concern for some of my colleagues. It is true that, within the proposed safeguards of Bill C-7, MAID would not be a measure of “last resort,” as it is in Belgium or the Netherlands, where the practitioner has to believe there are no reasonable prospects of improvement. To respect patient autonomy, the safeguards in Bill C-7 would require only that the person has seriously considered alternative means of relieving their suffering. But it is also the case that our regime includes the eligibility criterion requiring an advanced state of irreversible decline in capability. This criterion is absent from other regimes that do not limit MAID to end-of-life circumstances. In this way, Canada’s MAID regime would be narrower.

The bill’s proposal to allow the waiving of “final consent” responds to the specific circumstances in cases like those of Audrey Parker, and is responsive to the feedback provided during the MAID consultation in January of 2020. Practitioners indicated they were relatively comfortable providing MAID to a person who no longer has capacity in the narrow circumstances where their MAID request had been assessed and approved.

The bill’s proposal in this regard continues to safeguard the autonomy of the person who has lost decision-making capacity by clearly stating that a practitioner cannot provide MAID on the basis of an advance consent agreement if the person demonstrates refusal or resistance through words, sounds or gestures. Practitioners will exercise their clinical judgment in determining if the patient is expressing refusal or is merely exhibiting a reflex, but this is well within their expertise. For increased clarity on this point, the bill includes a “for greater certainty” clause, which confirms that the advance consent is still valid if the gesture was an involuntary response. This approach safeguards the autonomy of the person as they are in that moment.

The last issue I want to touch upon in my remarks is the exclusion of mental illness. Some witnesses who appeared at committee argued that this exclusion is necessary at this time. Dr. Gaind, a psychiatrist and past president of the Canadian Psychiatric Association, told us in clear terms that:

. . . there are significant differences with mental disorders that warrant treating them differently for MAID. Failing to do so would be discriminatory.

He reminded us that the Centre for Addiction and Mental Health:

. . . specifically said that at any point in time it may appear that an individual is not responding to any interventions, that their illness is currently irremediable, but it is not possible to determine with any certainty the course of this individual’s illness.

A representative of the Canadian Association for Suicide Prevention also told us that the association “strongly endorses” the exclusion of mental illness as a sole condition and that the provision is “absolutely essential to guard against premature deaths of people who are suffering from a mental illness . . . .” But we also heard strong testimony opposing the exclusion of mental illness.

I know this is a concern for many of you. I recommend that we all be prudent and listen to the experts who have told us that there are risks when the MAID request is based on a mental illness whose course is unpredictable. We all heard the Minister of Justice pledge to give the matter further consideration. Let’s not rush to authorize a measure that could put some Canadians in danger. Before we make such major changes to the MAID regime, let’s be sure we can do it safely.

Honourable colleagues, I have no doubt that we will debate worthwhile questions, complexities and possible amendments at third reading. I look forward to all of us working together to improve Bill C-7 and see it adopted in a timely manner. Thank you very much.

Hon. Claude Carignan
[15:40]

Honourable colleagues, we are coming to the end of our study of this bill, which will have major implications for many of our fellow citizens. Through this legislative instrument, we will be determining how people make decisions about the end of their lives.

Honourable senators, we have an important responsibility when it comes to the passing of Bill C-7 on medical assistance in dying. We had the same responsibility with the passage of Bill C-14, the first bill to amend the Criminal Code that was passed in response to the Carter decision.

At the time, the Senate had clearly pointed out that the bill was unconstitutional because of the reasonably foreseeable death criterion that must be met to qualify for MAID. We even amended the bill to remove the criterion that made Bill C-14 unconstitutional. You all know what happened next. The government rejected the amendment, and the Senate decided not to insist on it.

As many people had predicted, the legislation was immediately challenged in court. Canadians with severe disabilities who were enduring persistent suffering but whose death was not reasonably foreseeable felt they were being deprived of their constitutional rights, including the right to life, liberty and security of the person.

I am saddened to see that people who have already been dealt a terrible blow by life had to fight before the courts, with all the energy and money that requires, to have their rights recognized, because the Senate failed to play its role in protecting minorities and verifying the constitutionality of a bill.

This bit of background emphasizes the importance of our role as a chamber of sober second thought and as an institution that protects minorities and monitors the constitutionality of laws.

The Standing Senate Committee on Legal and Constitutional Affairs examined Bill C-7 and heard from many witnesses.

Of the 145 witnesses who appeared before the committee, only 2% did not raise issues with Bill C-7, and they were the three ministers.

As I mentioned earlier, we have a huge responsibility when it comes to Bill C-7, but we will also have the daunting task of fixing this bill to make it fairer, more humane and, above all, constitutionally valid.

Let’s look at the issues related to Bill C-7 that were raised by witnesses and senators.

As I said in my speech of December 14, 2020, the witnesses criticized nearly every measure proposed in the bill. The witnesses the committee heard from last week did the same.

First, there’s the criminal law aspect.

It’s important to be clear about what we’re doing here. We’re studying a bill that would amend the Criminal Code. We absolutely have to keep sight of that, and it’s worth taking a good long look at what is criminal and what isn’t. From that perspective, the longer we make the list of safeguards, the more likely we are to interfere in matters under the jurisdiction of the provinces and professional associations.

A lawyer named Andrew Roman commented on that during the committee hearings.

Mr. Roman is a litigation lawyer who has over 40 years of experience in human rights, constitutional, environmental and energy issues, and has appeared at all levels of court, including the Supreme Court of Canada, and in every province of Canada. He said:

What you’re dealing with now is a criminal law — that’s the law in front of you — and that’s the real problem, because criminal law is a very blunt instrument; it’s a sledgehammer. And what you deal with when you deal with MAID is a one-on-one decision between a patient and a physician, in a different setting, where the criminal law doesn’t really operate.

What you need to do is to take into account what the Supreme Court of Canada said at the end of the Carter decision, in paragraph 132:

What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. . . .

Patrick Taillon, an associate professor in the Faculty of Law at Université Laval, told us the following:

. . . as we decriminalize medical assistance in dying, we must accept that in our federation, the role of the federal Parliament will progressively decline. The provinces have jurisdiction over health care, private law and professional ethics. This file is no different than other files Canada has had to deal with in its history, including the lengthy saga of prohibition, the abortion issue, and the decriminalization of cannabis. We could name countless examples where, as a morally sensitive issue is decriminalized, the legislative space occupied by the provinces, as well as by regulations like the ones governing professional orders in this case, expands accordingly.

Federal intervention must not stifle what I call the dialogue between our institutions by imposing an overly detailed uniform standard, which would end up stifling the provinces’ ability to strike a balance between rights, freedom of choice, and safeguards.

I also think that the federal Parliament must avoid an overly detailed solution that would result in the courts ruling too quickly on matters that deserve a bit of time for reflection and experimentation, as well as trial and error.

Honourable senators, it is essential to keep all these considerations in mind. They must guide our study of Bill C-7 and the amendments we will propose.

The second point is whether the bill is constitutional. Like many others, I believe that Bill C-7 is unconstitutional for at least three reasons.

First, it perpetuates the criterion of reasonably foreseeable death by creating two categories of people who can opt for medical assistance in dying: those whose natural death is reasonably foreseeable and those whose natural death is not reasonably foreseeable.

It enacts specific and different conditions to be met for each category depending on whether or not the death is reasonably foreseeable.

One of these conditions, in the case of a person whose natural death is not reasonably foreseeable, is a 90-day period between the time when the physician begins the assessment for medical assistance in dying and the day on which the procedure could take place.

I find this condition to be ill-founded, cruel and also in violation of the Canadian Charter of Rights and Freedoms.

Finally, Bill C-7 denies the right to medical assistance in dying for persons who are only diagnosed with a mental illness.

For the purpose of medical assistance in dying, the bill specifically excludes persons suffering from a mental illness by stating in clause 1, and I quote:

(2.1) For the purposes of paragraph (2)‍(a), a mental illness is not considered to be an illness, disease or disability.

One of the big problems with Bill C-7 is that the concept of “mental illness” is not defined. A number of health stakeholders have pointed out that “mental illness” as a concept does not exist in the health care sector. Even Minister Lametti acknowledged this. He said, and I quote:

Indeed, the next step is to examine the definition itself. I want to point out that the bill currently excludes mental illness if it is the sole underlying medical condition. . . . For now, there is no definition, but it refers to illnesses that require psychiatric care. It is, therefore, insufficient. We will study everything properly.

Colleagues, I remind you that this bill seeks to amend the Criminal Code. This is no different from saying that fraud is prohibited in some cases without defining “in some cases.”

According to Dr. Mona Gupta, a psychiatrist, researcher and associate professor at the University of Montreal’s Department of Psychiatry and Addiction, the use of the term “mental illness” in Bill C-7 creates, and I quote, “real confusion.”

To drive her point home, she drew our attention to the fact that the Minister of Justice, in his Charter statement, suggested that a mental illness is one that falls primarily within the domain of psychiatry. Dr. Gupta gave the example of addictions. Since addictions are generally treated by general practitioners or addiction specialists, she wondered whether that was enough to exclude them from the expression “mental illness” as defined in Bill C-7, since addictions aren’t necessarily treated by a psychiatrist. In other words, she said that the expression “mental illness” doesn’t seem to take into account the fact that there is overlap among various medical disciplines in the treatment of many mental illnesses. She added that the expression that is generally used in the field of psychiatry is “mental disorder,” not “mental illness.”

I’d like to draw the justice minister’s attention to another problem with the current wording of the bill when it comes to the exclusion of mental illness. Although the term isn’t defined in the bill, the technical documentation that we received from the government gives examples of mental illnesses that would not be included. Would it not have been clearer to set out directly in the bill what does and doesn’t constitute a mental illness? The document in question is entitled Legislative Background: Bill C-7: Government of Canada’s Legislative Response to the Superior Court of Québec Truchon Decision, and this is what it says about the current legislative context:

In the context of the federal MAID legislation, the term “mental illness” would not include neurocognitive or neurodevelopmental disorders, or other conditions that may affect cognitive abilities, such as dementias, autism spectrum disorders or intellectual disabilities, which may be treated by specialties other than psychiatry . . . or specialties outside of medicine . . . .

In fact, several witnesses emphasized the vagueness, irrelevance and arbitrary nature of the expression “mental illness.”

One of the most criticized measures at the committee hearings was the exclusion of mental illness from the definition of health problems, as it appears in the bill. As I mentioned, this exclusion denies the right to medical assistance in dying to persons whose sole underlying medical condition is a mental illness. Many witnesses spoke out against this exclusion.

Before presenting the criticism of these witnesses, I note that the Minister of Justice justifies the exclusion of mental illness in this excerpt of his Charter statement in relation to Bill C-7, published on October 21, 2020. It reads:

. . . it is based on the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness. First, evidence suggests that screening for decision-making capacity is particularly difficult, and subject to a high degree of error, in relation to persons who suffer from a mental illness serious enough to ground a request for MAID. Second, mental illness is generally less predictable than physical illness in terms of the course the illness will take over time.

Hon. Marc Gold (Government Representative in the Senate)
[16:07]

Honourable senators, I rise today as we begin our deliberations on Bill C-7. Since I already spoke at length at second reading, I will be very brief today. First, I would like to take a moment to thank our colleagues for their efforts, commitment and insight in their study of this very important bill.

The Standing Senate Committee on Legal and Constitutional Affairs did invaluable work in its pre-study of Bill C-7. During its recent hearings, the committee spent several hours listening to experts and other individuals, asking them questions and analyzing their testimony. The witnesses’ views on the issue, while often divergent, were always honest. All committee members deserve our full appreciation for their commitment and patience.

Over the course of three days, Senator Jaffer and her team pulled together the witnesses and the schedules that allowed the input of as many groups and individuals as possible. Indeed, air traffic controllers would have been impressed with the logistical planning. On behalf of the government and this chamber, thank you to the chair, the deputy chairs, the committee staff and every member of the committee for seeing to it that Bill C-7 is now here for discussion and debate by all honourable colleagues.

Honourable senators, if there is one thing that we have seen in the course of our review, it is that Bill C-7 grapples with complex issues that engage our core beliefs as parliamentarians.

We have seen that the bill may go too far for some, including those who still do not accept that access to MAID is a right under the Charter. We have also seen that it may not go far enough for others, who ultimately would place even more emphasis on personal autonomy. To me, this discourse is simply a symptom and an example of Bill C-7’s reasonable nature, something that makes it worthy of our support.

Is the government moving the ball forward on this issue? Yes. Is the government moving too fast or too far? I say no. Rather, I submit to you that Bill C-7 strikes the right balance. The bottom line is that it is a reasonable, prudent proposal that achieves a complex balancing of rights. To my mind — and I say this not simply as the government’s representative — Bill C-7 is neither too hot nor too cold but has just the right temperature.

I’m certainly not alone in this view. Indeed, because of its progressive yet prudent nature, Bill C-7 found the support of four political parties in the other place in a two-thirds majority vote representing Canadians from all three coasts — from coast to coast to coast, as one tends to say. You can be sure that there are many MPs who would have liked to see certain issues addressed in this bill that were not, and others who would have tackled the policy differently. But at the end of the day, two thirds of MPs from all parties agreed that Bill C-7 strikes a fine balance that is worthy of support.

But while we should remind ourselves that Bill C-7 comes to us with a strong democratic stamp of approval, the Senate has a responsibility to conduct sober second thought to review, scrutinize, debate and consider improvements. We have seen in the last Parliament that the government that I have the honour of representing respects and values the work of the Senate.

As I have said on numerous occasions on this particular bill, and indeed as ministers have said in committee, the Government of Canada will take very seriously and consider in good faith amendments that the Senate may choose to propose to the House of Commons that are designed to improve the law, that are consistent with the objectives of the bill and within the scope of the legislation. So in that spirit, I want to thank all colleagues in advance for the thought and time devoted to your upcoming remarks, and I look forward to your contributions. Thank you.

Hon. Donald Neil Plett (Leader of the Opposition)
[16:12]

Thank you, Your Honour.

Honourable senators, I also rise today to speak to Bill C-7. As we commence what I hope will be a third reading debate filled with respect and compassion, I would like to say a few words about the process thus far.

To date, this bill has certainly received scrutiny. We had engaged, rigorous debate at second reading. We heard from 81 witnesses during our pre-study, as already said before my speech here of the committee work. The committee spent countless hours deliberating the contents of two pre-study reports. We then heard from an additional 52 witnesses during our committee study and made some observations as a committee.

While I am also proud of the work of the Senate on this significant issue, I fear that we are still left with more questions than answers. It is almost certain that there will be disagreement on major policy that we debate; however, Bill C-7 is on another scale, both in terms of the vast opposition and in terms of vital importance that we get this right.

I believe it will serve this chamber well to reflect on why we are here considering expansion of physician-induced death. For the record, I should explain why I personally do not believe the term “medical assistance in dying” or the word “MAID” are appropriate characterizations of what is being proposed in this bill.

First, I have never been a fan of watering down a word in order to diminish the gravity of its true meaning. But second, as was articulated by psychiatrist Mark Sinyor in committee, we are no longer talking about medical assistance in dying:

. . . as we are no longer assisting in a death process that is already occurring but are rather inducing death many years or decades before its natural occurrence as a means of coping with emotional suffering, which is, in essence, the definition of suicide. Here, we are really speaking about physician-assisted or, even more correctly, induced death.

Colleagues, how did we get to this point, where we are debating an overhaul of our entire regime a few short years after its enactment and before we have even undertaken a parliamentary review?

As has been said before, we are here because of a lower court decision made by one judge, in one province, and because the government chose not to defend its own legislation. As law Professors Sheehy, Grant and Kaiser stated in a recent piece, in which they reflect on the harmful impact that this bill will have on Canada’s disability community:

It is a cruel charade to pretend that a trial court decision by a single judge requires an emergency response by federal legislation.

They remind us that the government was eager to fight multiple rulings by the Canadian Human Rights Commission and even the United Nations regarding the findings of discrimination against Indigenous children and women. Yet, they instantly surrender to this lower court ruling and self-impose an untenable timeline for Parliament to enact this law.

We have been told by constitutional experts that if this law is struck down in Quebec and remains in place throughout the rest of Canada, it would lead to a more gradual and organic process, which would give us more time to examine if and when to expand this regime, and, more importantly, respect the fact that the Supreme Court of Canada is the final arbiter of constitutional rights in this country, not one judge in one province.

Colleagues, we need to ask ourselves: Do we know enough about how the current regime works to justify such an expansion? It is important to note that Bill C-14 explicitly mandated a very careful examination of our experience before moving forward. That was supposed to be in the form of a parliamentary review. And yet, no such review has begun.

Colleagues, we heard repeatedly that it is incumbent upon us to conduct a thorough review of the monitoring information and evaluation of the current legislation before moving forward to broaden this area of the law.

Dr. Jaro Kotalik recently published a study regarding the monitoring and reporting of the national MAID program. He contended that the program is not being monitored as required by law.

We also heard from Dr. Harvey Schipper, an expert on this regime, who marvelled at the idea that we would expand this regime without having adequate data to analyze. He concluded that we do not have enough information about whether we can sensibly remove a single safeguard. And, in fairness, he said we do not have enough to substantiate adding any safeguards either. He maintained that while we have only the most trivial data, we should be incredibly strict until we fully understand the matter.

Dr. Joel Zivot raised questions about the pharmacology of the procedure itself. He notes that there are similarities between the drugs used for assisted suicide in Canada and drugs used for lethal injections in the United States. After reviewing hundreds of autopsy reports, he noted that while lethal injections appeared to be peaceful to a witness, it proved to be anything but peaceful when taking a closer look. He noted that MAID includes the use of a drug that paralyzes the body, making it impossible to breathe or move, and that the use of paralytics in lethal injections has been abandoned by the United States because of this obvious cruelty.

While some Canadian MAID providers and even some in this chamber have vehemently disputed the claims of Dr. Zivot, stating that the procedure is in fact peaceful, to Dr. Zivot’s point, we cannot know that without post-mortem analysis, and we are not aware of any post-mortem analysis done on any patient who has received MAID to date. Colleagues, it is clear that on this point too, we simply do not know enough.

Yet, in the absence of this information, the government has pre-emptively removed safeguards that they vehemently defended just a few short years ago, notably when these safeguards were not implicated in the Truchon decision. While I am sure there will be a rigorous debate on safeguards when we reach that point in this debate, I want to remind the chamber that we are talking about ending a life.

These safeguards are clearly put in place to protect the vulnerable, especially in cases when assessors cannot be 100% certain of a patient’s motivation, state of mind, possibility of coercion, level of support or any other factor that could have led to such a request. We are talking about a 10-day period to reflect on an expressed desire to end your life, the requirement of two independent witnesses and the need to provide final consent.

These are far from unreasonable, onerous suggestions when we are dealing with life and death. Even more unsettling is that, in this new proposed regime, we are broadening access to include those who are not approaching end of life, and there is no requirement to make physician-induced death a last-resort-only option.

When one considers the safeguards in place for some life-preserving medical procedures, it is only logical that the safeguards in place for physician-induced death are at least as stringent. Take, for example, a neurosurgical procedure available in Canada to reverse suicidality.

Dr. Trevor Hurwitz testified before our committee and told us about a limbic surgery he has performed on chronically depressed and suicidal patients for 22 years in British Columbia. He has an extraordinary 100% success rate in reversing suicidality. While he was not there to testify about safeguards, I found the comparison in pre-procedure requirements remarkable. I asked him about the safeguards and mechanisms in place for this surgery — notably, a life-saving surgery.

He told me the process is as follows: Two psychiatrists assess for the fact that the patient has treatment-resistant depression. The patient would be required to have undergone all available treatments, including two courses of ECT. The patient would have had to try all available antidepressants, and they would have undergone psychotherapy. After they have met two psychiatrists, they are sent to two additional independent psychiatrists to assess capacity, to ensure that the suffering is not unduly shaping their decision-making capacity. The patient then meets with their neurosurgeon. Then the clinic sends reports to their lawyer. The lawyer meets with the patient, at which point the whole committee gets together. When the committee decides so, the patient is then eligible for the procedure. Because the criteria are so stringent, they have only had 12 patients undergo the procedure in 22 years.

Dr. Hurwitz said:

When I see the safeguards currently in place [in Canada’s MAID regime], they don’t even come close to the safeguards that we have in place to do a procedure that would save a life and this is a safeguard that will take a life.

Given the lack of review and how little we know, the absence of safeguards in this proposal is alarming. However, what is more troubling is what we do know. We know that the Indigenous consultation has been grossly inadequate. In fact, there was no Métis or Inuit consultation at all. There was no consultation whatsoever with Indigenous Canadians living with a disability.

We heard in committee that there is a concern among Indigenous communities that the proposed amendments may cause further harm to Indigenous peoples, especially in communities facing suicide crises. Tyler White, chief executive officer of Siksika Health Services, said:

The expansion of MAID sends a contradictory message to our peoples that some individuals should receive suicide prevention, while others receive suicide assistance.

We also know that there is concern among some, that given the history of Indigenous Canadians with our health care system, including horrific forced sterilizations, some question whether Indigenous peoples are even safe under this expanded regime.

We had the honour of hearing from François Paulette, a respected elder and chair of Yellowknife Stanton Territorial Health Authority Elders’ Advisory Council. He ended his powerful testimony with these words:

I look at this Bill C-7 as not belonging to us. I know that Western people, the way they do business, is quite different, very different. I am asked now in the late stages to amend this act. I should have been asked right from the beginning. You should have had Indigenous people sitting down with government people and designing this legislation. So I think Indigenous people are going to be hurt if you don’t put the right, constructive and rational reasons why our people should get involved in medical suicides.

And what was Minister Lametti’s response when he was asked about the lack of Indigenous input? I quote, “. . . we did our best in the time that we had. . . .”

We heard from Indigenous physicians and nurses that explicit conscience protection is imperative, especially under this proposed expanded regime. We heard this from other conscientious objectors as well, and that there will be doctors leaving the country or the medical profession. In fact, I met with some of them. It is appalling that the government still tries to hide behind an ambiguous, unenforceable clause from Bill C-14 that practitioners have assured us provides them no such protection. The decisions taken by some of the provinces to compel physicians to be involved have exemplified that.

Honourable senators, we know that according to international experts on this issue, that Canada will be the most permissive regime in the world, predominantly because there will be no requirement to explore all treatment options first.

We also know that this bill is in contravention of the UN Convention on the Rights of Persons with Disabilities. Three UN experts recently wrote in a statement:

Under no circumstance should the law provide that it could be a well-reasoned decision for a person with a disabling condition who is not dying to terminate their life with the support of the state.

This comes after a scathing report from the previous UN Special Rapporteur on the Rights of Persons with Disabilities on Canada’s failure to meet its international obligations with respect to our treatment of the disability community.

The UN report, which condemns specifically what this bill proposes to do, echoes the concerns that we have heard for months now from the disability community. This, colleagues, gets to the crux of the issue. We will spend the next two weeks debating both minor and substantial amendments to this bill. I plan to participate in these deliberations. However, the major sweeping change that this bill represents, and the reason for its existence, is to offer physician-induced death to individuals who are not approaching the end of life.

At second reading, I spoke at length about the testimony we had heard, during our pre-study, about the harmful and tragic message this sends to those living with a disability in Canada: in essence, that some lives are simply not worth living.

We have heard from Canadians who are struggling to get access to basic services and access to home care. They have been pleading with us. Rather than make any great strides to improve these services, this bill offers them death instead.

This has likely been the most common and overarching concern raised by witnesses over the course of our deliberations — that we are not offering most Canadians who qualify for assisted suicide a fair and honest choice between life and death, both in terms of supports for those living with disability or chronic illness and palliative care. In fact, by moving to broaden access to assisted suicide before we improve these systems, we are making it easier to die than to live.

The government keeps deflecting these concerns by talking about the amount of money they have spent in long-term care. On that point, we should be mindful of these figures from the Canadian Association for Long Term Care: The 2017 federal budget included a historic $6 billion over 10 years for home and community care. Long-term care was not included in this investment. The National Housing Strategy does not include long-term care. The Home Support Worker pilot for foreign caregivers does not include employment in long-term care.

The 2019 federal budget did not include investments in long-term care. The federal government flowed $343.2 billion in COVID-19-related spending in the first quarter of last year. Not one dollar was committed to supporting long-term care.

Last week, our committee heard from Jonathan Marchand , who testified from what he calls his “medical prison cell.” He insisted there cannot be death with dignity without life with dignity. Given his condition, he requires full-time home care, but instead he has been offered a choice between living in the hospital for the rest of his life or assisted suicide.

In his very powerful testimony, he told us.

My disability is not the cause of my suffering, but rather the lack of adequate support, accessibility, and the discrimination I endure every day. As a last resort, I occupy a space in a cage in front of the National Assembly in Quebec for five days and five nights to protest my incarceration and to implement community living solutions. Why is it so hard to be seen and heard when we want to live?

Suicide prevention is offered to people without disabilities, but I deserve assisted suicide? I’ve been told before: If you’re not satisfied with what you’re being offered, why not accept euthanasia? My life is worth living. I want to be free.

Colleagues, our unwillingness to see and hear the disability community when they have been asking for support — while we move at an alarming rate to offer them assisted suicide when we are under no obligation to do so — is frankly a national tragedy.

I encourage you to watch the testimonies of Heidi Janz, Jonathan Marchand, Gabrielle Peters, Sarah Jama, David Shannon and every disability advocate who took the time to appear before us. Please colleagues, take the time to listen to the community most directly impacted. They truly could not be clearer. As Krista Carr of Inclusion Canada said, “Bill C-7 is our worst nightmare.” Honourable senators, the experts have been clear: We know far too little about this issue to justify such a radical expansion, and yet what we do know is troubling.

With Bill C-7, the government is asking us to abandon our international human rights obligations, to fail our Indigenous leaders and communities, to expand assisted suicide to prison inmates before they have been given proper access to medical care, and to fail our doctors and nurse practitioners who want to preserve their moral integrity and professional judgment when providing care, and require that they refer their disabled patients for a physician-induced death, even when they believe there are treatment options available. Lastly colleagues, this bill asks us to abandon our disability community by offering them death before we have given them a chance at supported life.

While I will work hard to improve this legislation given the likelihood of it passing, without the reasonable foreseeability of death criterion in place I cannot in good conscience support this bill moving forward. Thank you, colleagues.

Hon. Lucie Moncion (The Hon. the Acting Speaker)
[16:37]

Senator Plett, will you take a question?

Hon. Pierre J. Dalphond
[16:37]

Senator Plett, last night on television, Jonathan Marchand was interviewed and was celebrating the fact that the Quebec government will provide him an apartment, where he will be entirely supported 24 hours a day seven days a week. Does that change your assessment of this situation, or at least his situation? He is no longer going to be in the jail.

Senator Plett
[16:37]

A friend of mine used to say when something like that happened, “Amen and pass the hallelujahs around.” I can only say I am happy that Mr. Marchand is getting this treatment. However, he is far from the only disabled person who is not getting the treatment they should be getting, and we should first be seeking that. Once we have 100% of the disabled community taken care of, then certainly that part of my concern in the bill will be satisfied.

Hon. Yuen Pau Woo
[16:38]

Honourable senators, I would like to share with you a few reflections on Bill C-7. Allow me first to acknowledge the work of our Standing Senate Committee on Legal and Constitutional Affairs, led by Senator Mobina Jaffer. Our colleagues have worked very hard over the recent weeks to organize hearings, receive witnesses and prepare reports. They were ably supported by Senate clerks, analysts, translators, technicians, cleaners and more, all of whom delivered the hearings under the challenging circumstances of a public health pandemic. I want to also thank colleagues who have spoken ahead of me for the insights they offered, often with striking passion.

I expect there will be no less passion in our third reading debate, and there may also be times during my speech today when I, too, come across as rather “exercised.” My intention today, however, is to try and leave emotions to the side and present instead my most dispassionate analysis of the bill. To be specific, I want to share with you how I am thinking about the bill and the many amendments that will be offered in the days ahead. In that sense, my speech is less about debating the bill than it is about an approach to debating this bill. I thank you in advance for your indulgence.

This bill is ostensibly about the government’s response to the Truchon decision in the Quebec Superior Court, which is, in turn, a new chapter in the evolving legal framework for medical assistance in dying. It is reasonable to argue that the government should have appealed the decision, but that is now water under the bridge. If I may torture the metaphor, Bill C-7 is the legislative raft that is floating downriver and we are all on it, looking for the best shore upon which to land.

Some of us, it would seem, have a desire to return to the bridge, which is seen as a place that can provide judicial clarity, and would like to row upstream to get that clarity. This sentiment is expressed in two ways: The first is to assert that the view of the Supreme Court on a particular issue in Bill C-7 is already known; the second is to seek a reference to the Supreme Court and to hold the bill, or parts of it, in abeyance.

The problem with this judicial reflex is not that the court does not have a say in the matter; indeed, on Bill C-7, it is a virtual certainty that the court will be asked to rule on the constitutionality of certain provisions in the bill, whatever the final shape of the bill. It is curious, however, that members of a legislative branch of government — the chamber of sober second thought, no less — would seek this solution rather than exercise what is properly within our duty and mandate, which is to assess the merits of the issues before us in order to come up with a piece of legislation that properly engages the Truchon decision and previous court rulings.

The proper place to develop policy is not the courts but Parliament. The Senate, in particular, with its sensitivity to minority rights, is well-placed to weigh the constitutional trade-offs that come with all difficult public policy issues, including MAID.

In the context of government legislation, the assertion that a given provision is unconstitutional should be the beginning of more robust legislative reflection rather than a signal to end debate on that provision. There are, of course, constitutional considerations in all bills, and we have to always be mindful of constitutional violations — indeed, we have to be vigilant against such violations. We also have to ensure that all bills respect constitutional values, even if there may be uncertainty about the constitutionality, as such.

The unconstitutionality argument that is used increasingly in this chamber has the effect of being a conversation-stopper; that is to say a way to end debate on the merits of a particular measure in a bill. It is, to me, a peculiar interpretation of the role of the Senate as a legislative body, which, after all, should be in the business of legislating. We are all familiar with the so-called “dialogic” relationship between the legislature and the courts, especially on the Charter of Rights and Freedoms. However one interprets the means of “dialogue,” it cannot mean that we simply turn to the courts for guidance each and every time we encounter an issue that engages the Charter. We need to play our part in the dialogue by articulating the non-legal considerations that go into any particular provision of a bill, rather than pretending to be Supreme Court justices and second-guessing their decisions. To quote Professor Kent Roach:

A constructive dialogue will occur if the courts focus on issues of principle that are liable to be neglected or finessed in the legislature and the legislature is candid about when it believes that such principles should be limited or denied in particular contexts.

That is precisely what should be happening in our debate on Bill C-7.

To be precise, let me focus briefly on one of the most controversial provisions of this bill, the exclusion of mental illness when it is the sole underlying condition. We will debate this issue starting tomorrow, so I will only touch upon the broad point about how I approach this issue.

Many colleagues feel strongly that mental illness as a sole underlying condition should not be excluded from MAID. It is fair to say that we have heard both sides of this argument during the Legal Committee hearings, and we will no doubt hear more from both sides when we begin our thematic debate tomorrow. This is the kind of exchange that the Senate should be having in its consideration of whether to include mental illness in the MAID regime, because it is how we can contribute to the dialogue with the courts on the constitutionality of excluding mental illness. If the case can be made, for example, that the medical profession does not yet have the tools to assess the MAID criteria for patients with mental illness as a sole underlying condition, then that is the information we should be communicating to the court as a factor in our decision to exclude mental illness in MAID.

Here, again, is Professor Eric Adams, a constitutional law expert:

The most significant question a court will examine in trying to answer this challenge, that expanded access infringes the Constitution, will be whether MAID and its system of protections and safeguards adequately protect the truly vulnerable while allowing the dignity of choice to those who are not.

Answering that question, it seems to me, will turn not on the eloquence of the argument but on the evidence of medical experts.

This same passage was quoted by Senator Carignan, but I want to focus on a different part of it, which is the phrase “not on the eloquence of the argument but on the evidence of the medical experts.” I agree with this approach, which is very different from arguing that the decision of the court is preordained, whether based on previous court decisions, one’s intuition of the Charter or an educated guess at the minds of the justices. Perhaps it is appropriate for students in a constitutional law class to come to a conclusion on how they think the court will decide, but legislators are not bystanders in the legislative process whose job it is to speculate on court rulings; our job is to legislate in a way that engages with court rulings on the Charter. It is not to ask the court to tell us what they think or, worse, to tell the court what we think they think.

That brings us to an underlying issue about Bill C-7 that troubles me and which I know troubles many of you as well. It is that we don’t know that much about the implementation of MAID since Bill C-14 was promulgated barely five years ago, and that we are making changes to this landmark legislation in the absence of a proper review of the experience to date. I think everyone in this chamber wishes that the mandated five-year parliamentary review of MAID had already taken place and that we had the benefit of its findings to inform our deliberations on Bill C-7.

Let’s make sure that the review does go ahead, that it is relevant and thorough — but that is an issue for another day.

The missed opportunity of a proper parliamentary review is something to regret, but it should not paralyze us. It would be wrong to say that we should defeat Bill C-7 or even stall it until the review is completed, because the Truchon decision requires the government to respond, and, as we all know, a response has been delayed a few times already, with the latest deadline set for February 26. It may be that we wish the government had come up with a different response to Truchon, but Bill C-7 is the response we have, and it passed the House of Commons with a comfortable majority. On the core issue of what Bill C-7 is responding to in Truchon — namely, death not reasonably foreseeable — it is difficult to make the case that the unelected upper house should reject the bill.

But Bill C-7 goes beyond the Truchon decision. Rather than limit its scope to the issue of natural death not being reasonably foreseeable, the bill includes other provisions that are not strictly germane to that decision, such as the relaxation of current safeguards for MAID, including the waiting period and the number of witnesses to a MAID request. The government is entirely in its right to add these measures to Bill C-7, but they were not compelled by the court decision to make those changes. It is a little puzzling because there is a general presumption among proponents of the bill that the five-year review should have taken place before something like Bill C-7 — or any adjustments to the MAID regime in general — was contemplated. One can argue that the government had no choice in the case of death not reasonably foreseeable, but surely they had the choice to hold off on removing existing safeguards until the parliamentary review was completed.

The point here is not whether the removal of existing safeguards in Bill C-7 is justified. I am glad those issues are not strictly ones of Charter compliance because it obviates the conversation-stopper argument that I alluded to previously. We will have a thematic debate on safeguards in a few days, and I am looking forward to substantive arguments on the merits of removing those safeguards — or, indeed, adding new ones — based, I hope, on evidence rather than conjecture or legal assertions. We can make up our minds after listening to those arguments.

The problem, rather, is that the government, by adding what I see as optional issues to a bill that could have been narrowly about a response to Truchon, has, in effect, opened the door to revisiting all of Bill C-14. It has invited a re-litigation, if you will, of a number of issues that were debated in Bill C-14 in the absence of evidence from the mandated five-year review.

The impulse to re-litigate goes in both directions, from those who never did much like MAID to start with, and from those who felt that Bill C-14 did not go far enough in the first place. We will see evidence of both in the amendments to come in the days ahead.

My Cartesian brain would have preferred a simple decision rule for this bill that was based on whether or not it responded in a reasonable way to the Truchon decision, but the inclusion of non-Truchon issues has muddied the waters.

I remain open to persuasion, but in general, I do not believe we know enough about the impact and implementation of MAID since 2016 to make major changes to the regime, apart from those that the duly elected government has decided to take because of the necessity to respond to a court decision. In saying this, I am only articulating the intent and spirit of Bill C-14. I would lean in the direction of collecting more evidence on MAID — especially MAID for patients with mental illness — and err on the side of caution.

One final reflection on how we deal with complexity in this bill: Even if we set aside the constitutionality argument against the exclusion of mental illness as a sole underlying condition, making mental illness ineligible for MAID poses a number of regulatory challenges. The definition of mental illness is fluid, which means there will be an ambiguity in determining who qualifies for MAID and who does not, with attendant challenges for professional regulators, not to mention law enforcement.

I don’t take these concerns lightly, and perhaps there are ways of finessing the language in the bill to provide greater clarity. The simple and obvious solution is to, of course, not exclude mental illness even when it is a sole underlying condition, but that is only a solution if your prior belief is that there are no concerns around the ability of medical professionals to assess such patients for MAID criteria. If, however, you do have concerns about assessment competencies, the so-called simple and obvious solution is not a solution but rather an abdication.

Needless to say, the easiest safeguard to regulate is to have no safeguard whatsoever. Regulating medical practice — or, indeed, any professional practice — is never straightforward and often fraught with ambiguity. Just think about sexual touching in medical examinations. We are grateful to professional regulators who have to wrestle with these challenges every day and who seek to continually improve their practice. But our job as legislators is not to make the job of regulators as easy as possible. We would be misguided if we took a decision on a bill that was based more on the level of difficulty in regulation than on the evidence that supported the decision in the first place.

The issue of how to regulate a complicated exemption, such as mental illness as a sole underlying condition, exposes what I believe is the fundamental fissure in the Bill C-7 debate. It is that some have great confidence in the ability of MAID assessors to do their work with accuracy, skill and compassion, consistent with the current law — while others are not so sure. Mental illness is simply a more fraught example of that divide.

The reason for a five-year parliamentary review was presumably to help us bridge that divide based on evidence rather than anecdote. It seems reasonable to me that we should not rush to expand MAID before we have that evidence. I think the Supreme Court can also appreciate that reasoning, which is why I am not as sure as some colleagues are about how the justices will rule on the mental health exclusion.

Colleagues, the clinical practice of medicine operates within a legal framework, which allocates to the profession the obligation to understand health and disease and to provide guidance and treatment accordingly. The guiding principle is science-centred evidence. That evidence starts with clinical observation, continuing dialogue with biological science, and leading to testable evidence of whether the hypotheses are right. This approach has led to the extension of the lifespan by 20 years in Canada in the last century and greatly improved quality of life for Canadians.

But medical science is not perfect. It has, at times, fallen prey to societal pressures to skip the science — the observed evidence — in favour of conviction. The result has been disaster. A poignant example was extremely high-dose chemotherapy to prevent breast cancer recurrence in women at the highest risk levels. Driven by legal argument — in particular, the argument of autonomy — women were offered this treatment in the absence of trials. When the trials were finally done, those so treated were found to have done materially worse. They suffered more and died sooner.

The current pandemic offers further evidence of the consequences of setting the science aside for conviction.

There are no perfect answers to the MAID question. However, the evidence we have from palliative care, among others, is that with proper focus on relieving suffering, the demand for MAID is much diminished. What we don’t know, and what patients and clinicians need to know, is the result of our experience to date. That is the hard clinical data that cannot be willed by philosophic or legal argument.

Colleagues, I offer these reflections as much for my own ongoing deliberation on Bill C-7 as for your edification or your chagrin, as the case may be. I remain open-minded on many of the particularities of the bill and look forward to the thematic debates in the days ahead.

As everyone pretty much agrees, however this bill lands some part of it will end up in the Supreme Court. Let’s give the justices something to think about.

Senator Dalphond
[16:58]

Honourable senators, as we enter the last stage of our study of Bill C-7, alterations to Canada’s constitutionally required framework for medically assisted dying, I would like to address some of the context relevant to this debate, including the legal requirements and the expectations of Canadians.

But first I would like to pay tribute to the members of the Standing Senate Committee on Legal and Constitutional Affairs, who, since November 2020, held nine full days of hearings totalling 56 hours of testimony from 145 witnesses, and who have spent countless more hours reviewing more than 100 briefs. The committee heard from a wide variety of perspectives, including ministers, provincial and regulatory authorities, advocacy groups, people living with disabilities, academics, legal and medical practitioners and experts, Indigenous representatives and people with personal experience with MAID.

I also want to acknowledge the hard work of my colleagues on the steering committee: our chair, Senator Jaffer, and Senator Batters and Senator Campbell. Unfortunately, Senator Campbell had to take a step back for health reasons in December, and I look forward to his return among us in good shape.

Through the entire process, we were assisted by devoted staff in our respective offices, by a highly efficient committee clerk, Mark Palmer, and by two exceptional analysts from the Library of Parliament, Julian Walker and Michaela Keenan-Pelletier. All of them performed public service beyond the call of duty, especially during the Christmas recess. I wish to thank them for their invaluable support, availability and contributions.

On process, I would also like to congratulate all Senate leaderships on the agreed-upon framework for our upcoming debate, building on the practices developed last Parliament around the first MAID bill and the cannabis legislation. I am pleased that this debate will be structured, including in the amendment process, and that our final vote will be scheduled. This approach will afford Canadians greater access to our work.

I now turn to Bill C-7. The background of this bill is quite simple. Further to the Quebec Superior Court decision in Truchon of September 2019, the Attorney General of Canada acknowledged that the reasonably foreseeable natural death requirement to access MAID was inconsistent with the Supreme Court’s ruling in Carter. Incidentally, that conclusion was reached by the Senate as early as 2016. It is regrettable that since then, access to MAID has been denied to many Canadians with enduring and intolerable suffering.

At the Legal Committee’s November 25, 2020, meeting, Jean-Pierre Ménard, a lawyer, said about the Quebec Superior Court ruling that it:

. . . sticks very closely to the Carter decision. [Justice Baudouin] says clearly that what the Carter decision said was itself very clear and that it also applied to Mr. Truchon and Ms. Gladu. She did not see any reason to stray from it or to rule otherwise. In Carter, the intolerable suffering of patients was the court’s decision criterion.

Once Bill C-7 passes and comes into force, an error made by the government and the House of Commons in 2016 will finally be corrected and all Canadians who are suffering and meet the eligibility criteria will be allowed to use their autonomy to choose, if they so desire, a peaceful death.

By correcting this error, Parliament isn’t just respecting a right that is constitutionally protected under the Charter of Rights and Freedoms, namely the right to make one’s own choices regarding end of life, including at a time that respects one’s right to dignity. We will also be respecting the will of Canadians. According to a Canadian poll recently conducted by Ipsos, 86% of respondents say they agree with the Carter decision; that percentage goes up to 89% in Quebec. What’s more, in response to a specific question on the primary purpose of Bill C-7, to remove the reasonably foreseeable death criterion, 71% of respondents indicated their support in favour of that initiative.

That said, removing this requirement cannot hide the fact that there are two different realities. There are individuals who are experiencing intolerable suffering and whose death is reasonably foreseeable, and then there are individuals who are experiencing intolerable and irremediable suffering but who may still live for several years.

The government cannot deny that these two realities exist, so it chose to adopt two sets of criteria to be eligible for medical assistance in dying. Some witnesses would have preferred just one set of safeguards and eligibility requirements that would apply to all applicants. Nevertheless, I believe that it is reasonable for the government to recognize these two realities, and this approach has the support of the vast majority of parties in the House of Commons and of members of Parliament. In the coming days, some senators will propose amendments to the safeguards for each of these situations. Some will say the safeguards don’t go far enough, while others will say they go too far.

I myself think that the bill strikes a balance between the autonomy and the protection of vulnerable people by adding strengthened safeguards for persons whose natural death is not reasonably foreseeable. Specifically, the practitioner is required to discuss with the patient all available services to relieve their suffering, including counselling services, mental health and disability support services, and community services.

Before the committee, Minister Lametti explained the purpose of the second track:

As part of the development of Bill C-7, the Minister of Health . . . and I met with organizations and individuals speaking on behalf of persons with disabilities at round table meetings, held across the country in January and February 2020.

One of these round tables was focused precisely on disability rights and mostly made up of national and regional disability rights organizations. This legislation reflects concerns raised at these consultations, with the inclusion of a two-track system with greater safeguards for those whose death is not reasonably foreseeable.

That being said, I acknowledge that we as a society still need to devote more resources to address the needs of people with disabilities, to provide access to palliative care in remote areas, to do more research on various illnesses and their treatments, as well as to have further research on social determinants of health. For example, we need to better understand the social factors in play when individuals make important decisions about their health and life, including about any kind of serious treatments or interventions. For example, what makes a person choose continuous palliative sedation or MAID?

But unless we revert to the old paternalistic views that have long guided medical practice, we have to be firm in protecting the right of patients to be fully informed and to decide independently what is best for them. The whole medical practice rests now on the concepts of informed consent and patient autonomy. The Canadian Charter of Rights and Freedoms protects that sphere of autonomy. Deficiencies in research data or gaps in health programs, services and structures in place are not a reason to deny or restrict the sphere of autonomy.

The very real concerns of insufficient funding, racism and bias in the health care system should not override the constitutional right of those with enduring and intolerable suffering to access MAID if that is what they truly want. Valid concerns about some other equally important rights cannot justify the negation of other rights; in other words, imperfections do not justify continued suffering.

Nicole Gladu made it clear that what she wanted was to be able to end her life at the time of her choosing:

 . . . efficiently and without suffering, in the company of my wonderful friends and with a glass of pink champagne in one hand and a canape in the other, as I admire the view of the sun setting over the river from my living room window one last time.

Let’s not deny Ms. Gladu and others in similar circumstances the possibility of ending their suffering as peacefully as possible in the company of their loved ones. Let’s not deny their friends and family the possibility of fully participating in the end of life of someone they care about and saying goodbye, as Marilyn Gretzky’s family was able to do.

In my view, Bill C-7 has struck a reasonable balance by removing the reasonably foreseeable death criterion and strengthening the applicable safeguards for the second track. This approach acknowledges diverse perspectives in the disability community and at no time does it encourage people with disabilities to choose MAID or endorse any such ideas. It is important to remember that access to MAID is based on informed consent by the requester and by nobody else.

That said, I agree with many senators that Bill C-7 could be improved by us. As you know, I have expressed serious concerns about the proposed exclusion of individuals with mental illness as a sole underlying condition. One of these concerns is about the lack of a definition of what is considered mental illness for the purpose of access to MAID. Tomorrow, I will have the honour to present an amendment to the bill to clarify that the exclusion regarding mental illness should not include neurocognitive disorders such as Alzheimer’s disease, Parkinson’s disease, Huntington’s disease and dementia. Otherwise, Bill C-7 would actually restrict access to MAID compared to the current regime, a result that would be a step backward, totally unacceptable and unconstitutional.

Another concern I have is about the exclusion of mental illness altogether. As pointed out by many psychiatrists and other medical practitioners, this amounts to a further stigmatization of those suffering from mental illness. Furthermore, as stated by many legal experts, this broad class exclusion is contrary to the individualized assessment approach advanced in Carter, Truchon and reiterated more recently by the Supreme Court of Canada in Ontario (Attorney General) v. G. However, I’m mindful that many witnesses said that the elaboration of the required guidelines and standards for patients with mental disorders will take some time.

In this context, the adoption of a sunset clause would be, in my opinion, a reasonable way to address the interim period required for the provinces and the medical profession to establish the appropriate guidelines and standards for responsible and uniform access to MAID where the sole cause of unbearable suffering is mental illness.

In conclusion, I look forward to the debate in the coming days as we work to achieve the best public policy for Canadians through our contribution of sober second thought. Meegwetch, thank you.

Hon. Denise Batters
[17:13]

Honourable senators, I rise to speak to the third reading of Bill C-7, the Trudeau government’s bill to expand assisted suicide. Bill C-7 marks a profound shift in Canada’s assisted suicide regime. Five years ago, Bill C-14 established a system of medical assistance in dying, or MAID, that would hasten the deaths of people already at or very near their deaths. Bill C-7 will now expand the criteria for access to include those for whom death is not reasonably foreseeable. Medical assistance in dying will no longer mean assisting a death that is already under way. Instead, it will mean the state terminating the life of a person who might otherwise have had years of life remaining. This expansion could unleash an ethical Pandora’s box, and I especially fear the devastating impact it will have on the lives of vulnerable Canadians.

It is regrettable that the Trudeau government has chosen this moment in time to push legislation that will expand assisted dying — in the midst of a pandemic, when anxiety, suicidality and substance abuse have increased, at the same time as services and treatment options have significantly decreased or even vanished. We are in a time when people are alone, isolated, economically disadvantaged, and this is the Trudeau government’s priority piece of legislation? It’s disgraceful.

Throughout the study of this bill, we have heard repeatedly what academics, professors and constitutional lawyers theorize about expanding assisted suicide, what it will mean in a courtroom or a lecture hall, or at the next professional conference. But what has been less prominent in this debate, honourable senators, are the voices of the people who have the most to lose from this legislation: people living with disabilities or struggling with mental illness; Indigenous peoples; Black and racialized Canadians; Canadians who are isolated or living in poverty. Honourable senators, those people who have been routinely pushed to the margins of our society are crying out to us for help. But they don’t want help to die; they want help to live.

One of our most important roles as senators is to represent the views of minorities in the democratic process. We are to give voice to the voiceless, so that no one is left behind. But with Bill C-7, the Trudeau government has left so many Canadians behind. Honourable senators, it is our duty, from our privileged position here in the Senate, to ensure that we actually listen to all the voices the federal government has ignored with this legislation. We heard from many of them during our Legal Committee studies on this bill.

We heard from people living with disabilities, like Jonathan Marchand. Jonathan has muscular dystrophy and lives in a long-term care facility in Quebec, an institution he likens to “a medical prison.” Last week, he told us:

. . . just like Jean Truchon, I’m forced to live here because there is no proper support to live in the community.

My disability is not the cause of my suffering, but rather the lack of adequate support, accessibility, and the discrimination I endure every day.

Suicide prevention is offered to people without disabilities, but I deserve assisted suicide? I’ve been told before: If you’re not satisfied with what you’re being offered, why not accept euthanasia? My life is worth living. I want to be free.

Studies have shown that recipients of MAID in Canada have a higher income and are substantially less likely to reside in an institution than the general population. Advocates of assisted suicide cite this as evidence that MAID isn’t being accessed by vulnerable populations. But Dr. Sonu Gaind told our committee that would likely change if MAID is expanded to include those for whom death is not reasonably foreseeable, and especially for those patients suffering from mental illness. He said:

[In] North America, where there is an equal gender balance and those seeking MAID tend to be better off, well-educated and also Caucasian, that is when MAID is for those who are dying; people who have lived well and want to die well. Evidence shows it is a different group who seek MAID for mental illness, with twice as many women as men in those situations seeking MAID, and patients suffering from unresolved psychosocial stressors.

Mental health advocate Mark Henick, who himself struggled with treatment-resistant depression, testified at our Legal Committee that he “absolutely would have” accessed assisted suicide had it been made available to him at his lowest point. He expressed his concern that MAID was not really an equal choice for someone suffering from severe mental illness, who often feel as if there are no other options. He told us:

The suffering was so grievous that I couldn’t see anything outside of it. The way mental illness works . . . is that it collapses around you and puts blinders on you so that even if there are other options, you can’t always see them.

Mark pleaded with our Legal Committee to retain the exclusion of sole mental illness in Bill C-7, saying:

I’m asking you, as a mental health advocate and as a person with lived experience of both serious mental illness and recovery, please don’t do this. Don’t abdicate your responsibility to better care for the most vulnerable among us under a false premise of freedom or a misapplication of what equity really means. Medical assistance in dying solely for a mental illness, assisted suicide by a sanitized name, will set the mental health recovery movement back by a generation.

The debate over Bill C-7 has seemingly coalesced around two polarizing world views — one of privilege and one of need. The debate over the choice of assisted suicide seems ludicrous from the perspective of someone living on the margins, unable to access other options for the treatment of intolerable suffering. From that viewpoint, it understandably seems to be a “luxury” to create a plan in advance to “die with dignity,” when most of one’s energy as a marginalized person is directed toward the struggle of just getting by. Author Nora Loreto recently wrote:

This perspective imagines that a dignified life is attainable in Canada for everyone, and that someone should have the right to decide when in their path along illness they want to die. But for everyone who can’t access that dignified life due to ableism, capitalism, colonialism and/or racism, the conversation is an insult.

Bill C-7 leaves behind people living in poverty, like Gabrielle Peters. On the right to seek death on one’s own terms, she told our committee:

The phrase “on their own terms” is slightly foreign to me as a disabled poor person. I can’t even cross the street at 8,000 of the 27,000 corners in Canada’s third-largest city because they have not been ramped. I live in a unit that was assigned to me. On the day I moved in, the movers had to wait while the police, then the coroner, and then an ambulance used the elevator, because this is how people here move out.

Disability advocate and community organizer Sarah Jama argued that factors of class and poverty mean that not all choice is created equal in the face of the very final act of assisted suicide. Further, she suggested that by expanding access to MAID so that more upper-middle-class Canadians can choose to arrange a peaceful or beautiful death, a whole other group of people — those living with disabilities in poverty — are exposed to significant harm.

Across this country, disabled people are living with government-sanctioned poverty rates on social assistance and without properly funded medication or therapy. What does choice truly look like under these conditions? A choice for some that would extinguish the choice of others is unjust.

After Gabrielle Peters appeared at our committee, she mused about the irony on social media:

[T]he state causes suffering through its policies, refuses to enact policies that would end or mitigate the suffering and then kindly offers to pay to end it — and you — permanently.

Sarah Jama pointed out how the parliamentary discussion on expanding assisted suicide in Bill C-7 has been shaped by the lack of diverse voices at the table, particularly when it comes to socio-economic class.

I also think it’s quite obvious that there has been a lack of diversity around people’s income and class. A lot of the speakers that you’ve heard from, from Dying With Dignity, have been people of an upper-middle-class background and have lobbying support, support with networks, and family and friends to support pushing this bill. You’ve not done enough work to go talk with people who are living in poverty or to people who are living on social assistance. The two views are quite different in terms of what this means, in terms of the medical racism and medical ableism that these groups face.

Many Indigenous witnesses mentioned high-profile cases of racism in the health care system, including the horrendous racist treatment of Indigenous patient Joyce Echaquan and Brian Sinclair, an Indigenous man with disabilities who died in an emergency waiting room after being ignored for 34 hours. Several witnesses feared that opening the eligibility criteria for MAID to persons not at the end of life would mean an increased risk of coercion for Indigenous patients.

Neil Belanger, of the British Columbia Aboriginal Network on Disability expressed his view that:

Racism toward Indigenous people permeates through our health care system, and it would be dangerously naive to suggest that MAID would be exempt from this system failure and to suggest that Indigenous persons living with disabilities would be adequately protected without the end-of-life criteria under MAID.

The federal government’s Bill C-7 has left Indigenous peoples behind. Many Indigenous witnesses at our Legal Committee hearings commented on the Trudeau government’s lack of consultation with Indigenous peoples, particularly Inuit and Métis, on the issue of assisted dying. Dr. Carrie Bourassa reiterated the need for comprehensive consultations with Indigenous communities in a spirit of meaningful cooperation, stating:

. . . if we’re going to have this discussion, it has to be done in a very delicate manner. You can’t just pull together three or four elders and expect that to be engagement.

Tyler White of Siksika First Nation called the government’s consultation with Indigenous communities “grossly inadequate” and voiced his concern about the message expanded assisted suicide would send to his community’s young people:

We are . . . concerned about the impacts of Bill C-7 on our efforts to combat the youth suicide crisis in our communities. The expansion of MAID sends a contradictory message that some individuals should receive suicide assistance while others suicide prevention. Our consistent message to our youth has been that suicide is not the answer to the difficulties and challenges we face as a people. Bill C-7 will send a message in direct opposition to ours.

Committee witness Sarah Jama pointed out the absence of Black and racialized viewpoints during the debate on Bill C-7. She noted the dangerous ramifications of those missing voices, given a history of medical coercion in the past:

I think it’s quite obvious that there have only been a handful of Black and racialized people to speak both in Parliament and in front of the Senate on this issue.

It’s engrained in our history in Canada that disabled people and racialized people have been abused because our bodies are seen as different, and that connects race and our abilities. And to not centre that in this conversation, while we’re passing this bill around euthanasia, is dangerous. It’s opening a can of worms that I think will be a regrettable part of our history here in Canada.

Honourable senators, we have a duty to hear these voices of the voiceless in this debate. We cannot just listen to White, upper-class university professors and legal experts who have the luxury of studying and pondering the esoteric points and finer nuances of these issues from the comfort of a leather chair in their ivory tower offices. Because in the real world, Gabrielle Peters is in her tiny apartment and Jonathan Marchand is in his long-term care room, trying to figure out how to access care services with months-long waiting lists, services that will never come fast enough, if at all, to alleviate their suffering or isolation or pain.

Meanwhile, the next Brian Sinclair will die in the next emergency room, ignored by medical staff who have made assumptions about him because of his race, while the homeless woman with a disability down the hall who came in seeking treatment for her intolerable suffering is offered access to assisted suicide instead.

Some might find it so much easier to listen to a university professor or legal expert discuss in a very detached and theoretical way the nuances of human rights law, than to listen to Sarah Jama in tears, pleading with us to listen to the people this law will actually directly impact.

Senators, we need to take a step back and put our privileged point of view aside. The voices of those who have spoken so strongly against Bill C-7 cannot be so easily discounted, as some have tried to do on previous occasions, with, “Oh, they’re opposed because of their religion,” or, “Oh, they’re just fundamentally against the concept of assisted dying anyway.”

Many of these people who oppose this bill are not religious and many were not opposed to MAID or Bill C-14, but they view Bill C-7 as a bridge too far, as a direct threat to the inherent value of their lives and to their equality rights under the law. Many of these people are traditional progressive allies: persons with disabilities, racialized communities, Indigenous peoples, people living in poverty. These are the vulnerable people we, as senators, have a responsibility to protect here. I hope that you will.

Thank you.

Hon. Mobina S. B. Jaffer
[17:27]

Honourable senators, I rise at third reading debate. I first want to thank the members of the Standing Senate Committee on Legal and Constitutional Affairs; the clerk, Mark Palmer; the analysts, Julian Walker and Michaela Keenan-Pelletier; and steering committee members Senator Campbell, Senator Dalphond and Senator Batters.

Thank you so much for your work.

I rise today to speak about Bill C-7 and the expansion it proposes to medical assistance in dying to include people who are suffering from illnesses that are not treatable but their end of life is not foreseeable.

MAID affects the most vulnerable, our most sick, but MAID is not a treatment option nor should it be treated as such. It is for people like Janet Hopkins who, in her letter to us, said:

All humans and animals have a primal urge to survive. What then brings a person to prefer death? Constant pain eats at your soul. It destroys. We start to question. Do I have to be doped just to exist? What is considered an acceptable amount of suffering? How much is enough to satisfy those who can’t or don’t want to understand? There is a limit to one’s endurance. It’s not that we want to die, it is that the pain has taken away the will to live. I am not the same person I was all my life. I am losing myself.

Honourable senators, Ms. Hopkins had so much more to say. Some of it is so sensitive that I cannot share it publicly with you, but committee members have read it. That is the kind of suffering we are speaking about.

MAID is intended as a well-thought-out, meaningful choice for people who are suffering, and in 2016 it was incorporated into our legal system to allow for such autonomy.

As we discuss expanding MAID, there are many aspects of the bill that I am sure you have heard about. I know that most aspects of the bill have already been shared with you, but there is one aspect of the bill that we have not heard about, and that is the importance of collecting and analyzing data.

Honourable senators, let me be clear: Without data, we are blind. We are making decisions without complete data. How are legislators supposed to take informed decisions and ensure that correct, meaningful policies are put in place without any data? How are we to solve our problems and prevent them from festering without any appropriate information?

Let me give you an example. Without the data collection and analysis related to women’s issues in Canada — like the wage gap or violence against women, among other issues — would we have been able to carve the effective legislation that our great country now has? Would we have been able to advance the rights and equality of women? I assure you, we would not. Information is crucial for legislators and policy-makers.

Honourable senators, last November, at the time of the pre‑study, I asked Minister Lametti if a gender-based analysis was carried out for this bill. He stated, “A gender analysis was done, and I can share a summary of it with the committee.” I followed up, asking if a race-based analysis was carried out. The minister responded, “My understanding . . . is that it was part of the gender-based analysis, and we can share that as well.”

Minister Lametti is the first minister ever to have shared gender-based analysis plus with the committee, and I thank him for that. He lived up to his promise, and in January the committee received the gender-based analysis plus. While I truly commend Minister Lametti for the gender-based analysis done for Bill C-7, I was saddened that the only sentence referring to race was an indirect quote under the demographics section, which reads, “The federal monitoring regime does not collect information about individuals’ income, education level, ethnicity and gender diversity.”

In our February hearings this year, as we studied the bill, I asked the minister why this was the case. The minister said:

The serious problem that we have across government, which has been illustrated in a number of different contexts, including this one, as well as our response to COVID-19, is the lack of disaggregated data. The challenge across government is to get better data, to have disaggregated data that allows us to answer the kinds of questions that you’re asking and to do the kinds of race-based analyses that . . .

— we were asking for.

Honourable senators, I know you know this, but 20% of our population is made up of people of colour. Almost a quarter of Canada’s population is racialized, yet the federal agency is not collecting data to help policy-makers take informed decisions about their future. We are going in blind on this bill to fight a battle for the lives of millions of people all over Canada.

During the committee hearings, I proceeded to ask witnesses from the Criminal Law Policy Section in the Department of Justice about race-based data collection, and they had almost the same answer, except they encouraged me to follow up with Health Canada about my concerns.

I went on to ask Ms. Abby Hoffman, Senior Executive Advisor to the Deputy Minister, Health Canada. I told her that I was very disheartened to see there was virtually nothing considered on race and the gender-based analysis plus document that I had received. My question to her was the following:

Given these regulatory powers belong to the health ministry, to your knowledge, is this disaggregated race-based data collected by the federal government?

Ms. Hoffman said:

. . . as far as the federal monitoring regime is concerned, we are not collecting race-based data or other information with respect to ethnicity.

She added:

We will be looking very clearly at how we can include information about ethnicity, not only in the monitoring regime itself but in our more general consideration of our societal and sociodemographic issues that influence both access to health care and access to MAID and consideration of eligibility for MAID.

I proceeded to ask Ms. Hoffman: “Is there any collection at all of data?” Ms. Hoffman replied:

If you’re talking about race-based data related to MAID specifically or even access to health services more generally at the federal level of a comprehensive nature, I would say the answer to that is no.

The answer is no, honourable senators. We do not collect data about a quarter of our population; that is millions of Canadians. Ms. Hoffman, however, said that through linked data sets at Statistics Canada, this information could be collected. But she added:

It’s possible, but there are issues of timing. We pride ourselves on the fact that we’re producing this MAID data and monitoring report as soon as we can after the period in question. If we waited to pursue linked data with Statistics Canada, another year or more would elapse before we could actually shed light on the issues you’re talking about.

Honourable senators, we learned from our witnesses. Dr. Timothy Holland, who is a MAID physician provider and assessor, said:

A MAID assessment is no trifle affair. In order to perform a MAID assessment, we must have full knowledge of the patient’s comprehensive medical status. We must perform a robust capacity assessment. We must ensure the patient fully understands all options available to them, so that we can be sure the patient is making a truly informed decision. And we must also understand who that patient is as a human being and understand the values that have guided their life. Only then can we truly assess if they meet the criteria for MAID and feel confident that this is truly the patient’s own decision, free of coercion.

Honourable senators, without data collection and analysis, we only have the anecdotal evidence we receive from the many racialized witnesses with lived experiences. I believe the time is right in our country to collect data affecting all Canadians. We need to do much better.

Honourable senators, we are studying this bill, and I wanted to bring to your attention the issue of non-data collection for almost a quarter of our population. Senators, I raise this issue with you. I could have raised many other issues. All I have done since December and January has been to live, eat, breathe and sleep Bill C-7. I raised this issue because I did not think anybody else would. We, in Canada, want harmony, and to achieve harmony in our country we have to be able to understand each other.

When I was little my mother — and some of you have heard me say this many times — used to ask me to play the piano. To annoy her, sometimes I played only the black keys, and sometimes I played only the white keys. Try it, senators. There is no harmony if you play only black keys or play only white keys.

To have real harmony in Canada, to really serve all Canadians — and we, as legislators, must look at the needs of all Canadians, not only a portion of them — we have to make sure we have data for all Canadians. We cannot today say that we didn’t have time to collect data for a quarter of the population. Honourable senators, I know you will all agree with me that that is not acceptable. Thank you very much.

Hon. Mohamed-Iqbal Ravalia
[17:40]

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

As we’ve heard through hours of compelling witness testimony in the Standing Senate Committee on Legal and Constitutional Affairs, and in the other place, this legislation raises incredibly complex and contentious issues. The concept of medical assistance in dying places two of our most sacred principles — the protection of life and the preservation of personal autonomy — in tension with each other. It demands a broad and interdisciplinary discussion involving social, legal, medical, moral and ethical concerns, and we’ve covered much of that ground in the past few weeks.

Honourable colleagues, legislation can often seem theoretical, distant and cold. However, Bill C-7, perhaps more so than most, involves real people and real families and agonizingly real choices made in a context that cannot possibly be understood by those who have not lived or experienced it. It is important to keep that front of mind and to approach this topic with the humility that it deserves.

There are multiple lenses with which to examine and assess this legislation. I will apply a clinical lens, one of lived experience as a rural family physician for over 35 years in my home province of Newfoundland and Labrador. The majority of my career was spent in Twillingate, a fishing community of 2,500 people, located in Notre Dame Bay, off the beautiful northeast coast of the island of Newfoundland. One of the greatest joys of living and practising medicine in this community was building meaningful relationships with my patients and my community. They were daughters, sons, parents, grandparents and friends. I knew their families and they knew mine. I had a comprehensive understanding of how their medical and social issues affected their lives. I understood the context of their concerns and their complex diagnoses and spent time discussing their prognosis. I was also a first-hand witness to the unique challenges faced by rural patients when it comes to accessing quality health services in a timely manner.

Honourable colleagues, one of the key objectives of this bill is ensuring that every individual can choose a peaceful death if they determine their situation is no longer tolerable to them, regardless of their proximity to death. That objective can only be achieved if there is equitable access to this service. The theoretical right to receive medical assistance in dying only exists for rural Canadians if they can practically access it. To that end, the bill before us contains a welcome amendment from the other place. In its original form, the bill mandated that in cases where a patient’s death was not reasonably foreseeable, the MAID provider or second medical or nurse practitioner involved in the assessment would also have had to be an expert in the condition that is causing the person’s suffering. To find a MAID provider who is also an expert would have likely been a significant barrier for individuals living in rural and remote communities.

While Canadians living in rural communities constitute one fifth of our population, they are served by only 8% of physicians practising in Canada. Only 14% of family doctors in Canada practice in rural and remote regions. To emphasize that inequity in an even more tangible manner, less than 3% of physician specialists work in rural and remote areas.

In the current version of the legislation, however, if neither the MAID provider nor the other medical or nurse practitioner have the required expertise, one of them must consult with a medical or nurse practitioner who does have that expertise and share the results of that consultation with the practitioner. This indeed helps mitigate the barriers for patients to have an assessment.

As Canada’s MAID regime matures and develops, I am confident that Parliament will amend and adapt the regime to introduce similar practical improvements.

As a physician from an incredibly tight-knit community, I’m well aware of the agonizing circumstances that might lead a patient to choose to access medical assistance in ending their life. While I have always vowed to first, do no harm, the harsh reality is that there are some circumstances where a patient is indeed in intolerable and irremediable pain and suffering despite all the measures being taken to mitigate this. In such difficult circumstances, accessing care to peacefully end the patient’s life — on the patient’s own terms — may be the least painful out of a range of agonizing choices. Affording dignity is a critical component on this chosen pathway. It is not a pathway that is coerced or canvassed or forced.

Our courts have ruled that Canadians must be able to access MAID. We must ensure that physicians and nurse practitioners have a practical and feasible pathway to ensure that they are fully able to address their patients’ suffering or intolerable pain, with medical assistance in dying being one — and let me emphasize that again: with medical assistance in dying being one — of a range of options.

Honourable colleagues, this is a debate that strikes at some of our deepest philosophical and ethical questions. It is a debate in which two of our highest and most sacred feelings — the protection of life and the preservation of our personal autonomy — can seem at times to be polarizing and at odds. It is a debate in which parties of equal good faith can disagree with each other in the strongest and most emotional terms possible, as we have witnessed in the incredible testimony.

To those who harbour fears of potential abuse of the vulnerable or disabled, this bill may never seem safe enough. On the other hand, it likely does not go far enough for those who have witnessed the ravages of dementia and neurodegenerative conditions and other conditions that could be ameliorated by advance consent for MAID. It is important, I think, for all of us to remember that this regime in Canada is less than five years old. There remain several outstanding concerns — including the state of palliative care in Canada, the exclusion of mental illness and mature minors with terminal illnesses. While research on MAID in Canada is in its infancy, I feel confident that, through further study and investigation, we will be able to better understand how to address these ongoing complex issues.

Honourable senators, this legislation is not all-encompassing. There is still a need to improve the availability, accessibility and delivery of crucial social services and supports in a manner in which they impact our day-to-day lives. Many of these gaps have been highlighted during the examination of this bill, and many more have both come to light and been aggravated by the current pandemic.

My life’s work has included the difficult challenge of caring for people with irremediable pain and suffering. Their pain and suffering have forever been etched deep within my soul. Advocacy on their behalf, including the option of death with dignity when all other options have failed, has been the foundational cornerstone of my practice philosophy. Bill C-7, colleagues, I feel, is a step in the right direction to broaden the range of these individuals’ options.

Thank you. Meegwetch.

Hon. Pat Duncan
[17:51]

Honourable senators, I rise today, gratefully speaking to you from the traditional territory of the Kwanlin Dün First Nation in the Ta’an Kwäch’än Council. My remarks will speak to Bill C-7 at third reading.

I would like to express my thanks to honourable senators throughout the chamber, notably Senator Petitclerc, the bill’s sponsor; Senator Jaffer and her colleagues on the Standing Senate Committee on Legal and Constitutional Affairs; Senator Gold, the Government Representative; Senator Carignan, the bill’s critic; and Senator Cotter and Senator Dalphond, among others with a legal background and understanding of jurisprudence on this important matter. And to the physicians in our midst, thank you. Without your expertise, this debate would be less constructive. Thank you to everyone, especially the Senate staff in our offices and table officers who have provided us with their able assistance in preparing us and who will be guiding us in the coming days as we debate Bill C-7.

Honourable senators, I have prepared these remarks knowing that I am to deliver them in learned company that is more well versed than I am on the subject of medical assistance in dying and in its history in this chamber.

Having listened to and reviewed the debates, I realize there are far greater orators and clear-minded thinkers than myself. Nonetheless, I seek to address you since I arrived in this chamber the way most of the recent appointments have: Through an application process, believing that my background and understanding of the legislative and public administrative processes have qualified me to be here. I am also the only representative of the Yukon in this chamber, and thus I feel I have a responsibility to ensure that Yukoners’ voices are heard and that the Yukon experience is shared on this subject.

The view from the federal-provincial table has not, in my opinion, been fully explored in our discussions on Bill C-7, yet the provinces carry most of the responsibility for health care administration, including that fundamental role of paying the health care providers, including those who administer MAID and/or who provide palliative care.

In reviewing Bill C-7, I have read the debate offered by my colleagues and considered the discussions at the committee. Like many of you, I’ve heard from the disability community. I hear the fear and the concern in their voices, even though their words and voices may have come to me electronically. Canadians have written and emailed. You may not have received a personal response from me, but please know that you have been heard. I do appreciate and value what you have told me.

That there are Canadians with disabilities who are without homes, who do not have the funds to pay for pharmaceuticals that will better manage their disability on a daily basis and that there are Canadians with disabilities left out of Canada’s health and social safety nets — and often left out of community life — troubles me greatly.

I believe that all governments federal, provincial and territorial, as well as First Nations, senators, Councils of Elders, Canadians — we all have a responsibility to address this troubling reality. It is not addressed in Bill C-7.

Honourable senators, Bill C-7 expands the eligibility for medical assistance in dying to competent adults whose illness, disease or disability is in an advanced state of decline or capability. It’s important to note that medical assistance in dying is requested through an application-driven process. Others have mentioned this. I have also heard the testimony and the discussion in this chamber and elsewhere regarding those instances where MAID has been inappropriately offered to a person. I do not doubt that this has occurred, and I share the horror and sense of disbelief. How could any reasonable health care professional think that was appropriate or within the tenets of their oath? The fact that these comments have been made, that unnecessary deaths have occurred, is not an error in legislative drafting. We are amending this section following the interpretation of the courts. Granted, it’s advice that the Senate had previously given the other place, as eloquently shared by Senator Seidman. Whether the legislative drafters have it right this time, debate and time in this chamber will tell. So far, I am inclined to say they do.

I would be remiss in addressing the testimony and the stories shared by the disability community if I did not also reference the systemic racism that exists in the provision of health care in Canada. Senators have discussed the tragic death of Joyce Echaquan under deeply troubling circumstances. Even more troubling is that her story is not the only story. It is one of many, told and untold. As a country, we must address systemic racism wherever and whenever it occurs. However, addressing systemic racism in health care is not the substance of Bill C-7. Safeguards are present in Bill C-7, as has been ably presented by several senators.

Honourable senators, having acknowledged the concerns of the disability community and the fact that systemic racism exists, I am compelled to share with you a troubling trend I have witnessed and heard in debate. Several times, I have detected a deep mistrust and, might I say, a lack of faith in our medical community. I find this deeply troubling. Yes, I recognize that mistreatment and issues of deep concern exist. There are also areas of significant progress.

Just one example from my home community can be found in the Yukon Hospital Corporation’s First Nations Health Programs. At the outset, those who self-identify as First Nations, Métis or Inuit, either when registering or later, have services available to them that reflect First Nations culture and values, including traditional foods. This is just one example of what I hope are many programs throughout the country as we seek reconciliation.

Ultimately, senators, because they are regulated professionals, we generally trust health care providers to bring us, our children and our grandchildren into this world. Why would we not trust them to help us leave it?

There has also been a great deal of discussion about and education on the services of palliative care for Canadians and its intersection with the provision of MAID. Many times, I have heard and seen references to the lack of palliative care, and especially the lack of funding for palliative care, during the course of our debate on Bill C-7.

Thank you, Senator Mégie, for your presentation at committee and your speech in this chamber. Your thoughtful, learned presentation proved extraordinarily helpful to us and to the public who listened to us.

Senators, I worked in the administration of insured health services when the first contract with a physician to provide palliative care services in the Yukon was negotiated. The process started in 2006 and concluded in 2012. I also served as the Yukon’s Minister of Finance during the debates about health care funding of the early 2000s, a time when the Yukon had suffered exponentially from the cuts to the Canada Health and Social Transfer.

Health care and its provision, albeit within the Canada Health Act, are seen as a provincial responsibility. How provinces spend the federal health transfer dollars through the Canada Health and Social Transfer — whether providing palliative care services or not, whether privatizing or not, or extended care facilities — are issues outside the discussion of Bill C-7.

Even the observation that Canada should provide more funds — with the caveat that the funding attached must be spent in a particular area or in a particular way — are observations, as we all know, that are largely unenforceable.

Honourable senators, we may hold that opinion and we may want to offer the recommendation that dollars be spent, that the Government of Canada could do a better job funding health care. We might also want to make the observation as to how that money is spent in our province or territory. Nonetheless, colleagues, we are not in the cabinet room — the provincial or territorial cabinet room — when those decisions are made, and we don’t answer to the voters for those decisions.

I’m not suggesting that the Senate not make these observations. I do agree that the lack of palliative care services, as just one example, is a national tragedy. And lack of access to palliative care is just one of the incredibly important matters mentioned during discussions of Bill C-7 that is outside of Bill C-7.

I do believe we should acknowledge and pursue these matters. However, I believe we should observe them and we should act upon them when we stand to gain a greater degree of success. For example, let us honour and build upon the work of colleagues, such as Senator Carstairs, and raise awareness and support for palliative care amongst Canadians so that when they hold those who ask for their vote — be it a member of Parliament or a member of a provincial or territorial legislature, federally or provincially — Canadians will ask, “What will you do, if you’re elected, to make palliative care services available to all Canadians?” and more importantly, for Canadians to hold them accountable when they do not live up to that commitment.

Honourable senators, seeking to address a standard of accountability as a senator representing my region and the diversity of people within it, and armed with the knowledge that legislation can only be as good as those who are tasked with upholding and administering it, I sought the wisdom of the palliative care doctors and the physician who administers MAID within Yukon. To those who noted today that we have not heard evidence from those first few years of Bill C-14, I offer the following:

I have been a family doctor in Yukon (urban and rural) for 40 years and more recently I have been focusing on cancer patients. As a result, I have been engaged with MAID since the first legislation was debated.

I feel grateful that our territory has had a smooth and collaborative time while starting MAID. There has been a close relationship with the palliative team, the Health Care community and the multicultural groups including the First Nations on whose land we live.

It is clear that our population wishes the right to make a choice around their end of life and the entire population has access to palliative care including MAID no matter how distant they are from Whitehorse.

Given our population, several people still do not realize the choices they have at end of life. Given our small population but huge rural land, we feel that the new legislation, which is strongly supported, would be best with two local physicians assessing the MAID patients and having the specialists more as help and guidance while filling the forms. We agree that only one person needs to witness the MAID request form rather than two, as privacy and lack of people in small towns can be an issue.

The author, I might add, was also recently awarded the Order of Yukon for her service to Yukoners.

I share this with you, colleagues, to show that MAID, as it was envisioned in Bill C-14, has worked in the Yukon. As it is drafted in Bill C-7, this bill, the physicians charged with its implementation have advised me that it will continue to work in the Yukon with and for all Yukoners. There are successful applications and interpretations of the legislation as it exists and as it is anticipated.

Thinking with an all-of-Canada perspective, both the Yukon physicians and I recognize that there are outstanding issues and concerns to be addressed in the legislation. Mental health is one of these. One size does not fit all in legislation, especially in Canada. Legislation can always be improved as circumstances and attitudes change and develop.

I look forward to our debate and the improvements that are suggested by my colleagues in the coming days and I thank you for this opportunity, for listening to these comments and this northern perspective as we enter our discussions.

Mahsi’cho, gùnáłchîsh. Thank you.

The Hon. the Speaker pro tempore
[18:05]

Honourable senators, pursuant to the order adopted earlier today, the sitting must now be suspended for an hour. The sitting will resume at 7:06.