Criminal Code

Bill to Amend--Third Reading--Debate

February 11, 2021

Hon. Renée Dupuis

Honourable senators, I rise today to speak to the amendments proposed in Bill C-7: first, to include access to medical assistance in dying for persons whose death is not reasonably foreseeable; second, to amend the access conditions for persons whose death is foreseeable; third, to address the issue of advance directives.

The first paragraph of the preamble of Bill C-7 states:

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

That ruling was made on September 11, 2019.

The second paragraph of the preamble goes on to state:

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

First, Bill C-7 proposes to repeal current paragraph 241.‍2(2)(d) of the Criminal Code, which requires natural death to be reasonably foreseeable in order to have access to assistance in dying.

This part of the bill responds to Truchon.

Next, Bill C-7 introduces two types of mandatory processes to have access to assistance in dying. First, the bill amends the existing process for situations where death is reasonably foreseeable in order to make it less burdensome. Second, the bill introduces a second process for cases where natural death is not reasonably foreseeable by adding what some would call safeguards and others would call additional obstacles.

In doing so, the government is choosing to create a two-track approach to accessing medical assistance in dying, which really isn’t necessary. Furthermore, in the second track, in those cases where death is not foreseeable, Bill C-7 creates greater obstacles than in the first track.

In fact, the two processes introduce a distinction between these two categories of people, presuming that all people are vulnerable, which is not the case. This distinction between categories of people is arbitrary, its scope too broad and its consequences disproportionate for people whose death is not foreseeable, which violates the equality rights protected under section 15 of the Canadian Charter of Rights and Freedoms and the right to life, liberty and security set out in section 7 of the Charter.

The Minister of Justice told the Legal and Constitutional Affairs Committee that these are enhanced safeguards for when death is not reasonably foreseeable, when, according to him, the risks are greater. In response to a question about what he meant by “greater risks” in such situations, he said he was referring to concerns expressed about medical assistance in dying. As he explained it, the government wants to strike a balance between protecting autonomy in making this kind of decision and the concerns it heard during consultations. The safeguards must be designed to protect the patient. They must not be obstacles to honouring the patient’s wishes. Most importantly, they cannot be established arbitrarily because some people oppose medical assistance in dying.

Witnesses who appeared before the Legal and Constitutional Affairs Committee during its study of Bill C-7 also emphasized the fact that the concept of reasonably foreseeable death is confusing and ambiguous and cannot be evaluated, because it places a burden on the medical assessors. Dr. Naud, who appeared before the committee, said the concept:

 . . . represents no medical concept or definition and appears in no medical textbook, and yet physicians are responsible for applying it.

The procedure for people whose death is not reasonably foreseeable includes a series of criteria referred to as safeguards. According to several witnesses who appeared before the Legal and Constitutional Affairs Committee, these obstacles are arbitrary and unfounded.

Some of the obstacles the bill proposes to add to section 241.2 of the current Criminal Code, in proposed subsection 3.1, are particularly problematic. For example, first, there is the requirement to obtain a second written opinion from another physician or nurse practitioner confirming compliance with all other criteria. Second, there is the requirement to consult a medical practitioner who has expertise in the condition causing the patient’s suffering if the physician or nurse who will provide MAID does not have expertise in the matter; this requirement, introduced by an amendment adopted in the House of Commons, doesn’t properly address the issue. Third, there is the requirement that there be a discussion, and also an agreement, added here in proposed paragraph 3.1(h); this is especially problematic. It requires that the physician or nurse practitioner ensure that a three-way discussion take place with the physician or nurse practitioner, the second medical practitioner consulted who provided a written opinion, and the person who made the request for MAID. This discussion must focus on the reasonable and available means to relieve the patient’s suffering. Not only must that discussion take place — which is understandable — but another condition has been added, namely that the physician or nurse ensure that the two medical practitioners agree with the person requesting MAID that the person has given serious consideration to those means.

These two additional conditions seem not only arbitrary, but their scope is excessive and they disproportionately affect those whose death is not foreseeable.

Nonetheless, the fact that assistance in dying is conditional on an agreement between two other doctors confirming that the person has “seriously considered” other options is much too restrictive.

First, it is too vague to be seriously enforced. What criteria will the doctors use to determine whether the person seeking MAID has seriously considered other options? Who should define such criteria? The person requesting assistance in dying is thereby at the mercy of an agreement between two doctors. Should the doctors not see eye to eye on the issue, the person has no recourse and will be denied assistance in dying.

Second, this requirement contradicts the very principle that the bill seeks to enshrine: access to assistance in dying for consenting adults who are capable of providing free and informed consent. This additional condition is a very clear step backward when it comes to respecting people’s autonomy in making fundamental personal choices about their bodily integrity and medical care, which was reiterated by the courts. This additional excessive condition is contrary to the right to life, liberty and security of the person protected by section 7 of the Charter.

A doctor who testified in committee told us that medical paternalism has evolved. We would like to believe it.

Fourth, the 90-day minimum required between the day the first assessment begins and the day medical assistance is provided seems to be unnecessary and meaningless, according to some of the witnesses we heard in committee. It also seems to be arbitrary, to say the least, given the unsatisfactory explanations provided to the members of the Legal Affairs Committee. As a witness told the committee, this is a penalty for suffering.

Lastly, the Legal Affairs Committee presented its report on Bill C-7 on February 8, in which it came to the following conclusion about waiving final consent:

Witnesses also had divergent opinions on the requirement that a person give final consent immediately before MAID is provided and the possibility of a waiver of final consent in advance of a loss of capacity.

The ability to waive final consent should apply to all requests for medical assistance in dying, whether death is foreseeable or not. This artificial distinction between the various stages of an illness is arbitrary, as we have discussed. A number of witnesses from the legal community reminded us of this fact.

Experience has shown that it is the ability to express one’s will that is central to the request for MAID. That is why having the possibility to draft advance directives is truly central to respecting our autonomy to make decisions and our will concerning our integrity, regardless of whether death is foreseeable or not and regardless of the diagnosis of our condition.

The Hon. the Speaker pro tempore

Do any other honourable senators wish to intervene in debate on the theme of safeguards and advance requests?

If not, debate on this theme is considered concluded, and the Senate can proceed with debate on the next theme, which is vulnerable and minority groups, healthcare (including palliative care) and access to medical assistance in dying.

Hon. Mobina S. B. Jaffer

Honourable senators, I will be moving an amendment.

I cannot express how privileged I feel today to rise to encourage you all to support my amendment calling for race-based data of all people who request and receive MAID to be systematically collected by the Government of Canada.

This amendment truly is the culmination of decades of work, and it is underpinned by principles of true justice and racial equity. Senators, I am aware that while my amendment focuses on race, I certainly do acknowledge that there are many other gaps in data collection. While data collection may be inadequate for other groups, data collection is completely absent when it comes to race, and that is why it is my primary focus.

Honourable senators, we have spent the past year talking about systemic racism and injustices racialized people face. While studying Bill C-7, I identified an instance where race was not taken into consideration, and I felt it was our responsibility to take action, as this is a very important piece of legislation.

At committee, Senator Harder said the following:

I have a further question, going back to data collection. It is not uncommon in bills such as this to have a hook in the bill with respect to regulatory amendments or regulatory procedures that would allow data to be collected that is relevant for the consideration of the issue that the bill addresses.

Are you saying that you don’t have the capacity to collect the data that we assumed with Bill C-14 would be collected and therefore instructive in future consideration of this issue? If not, would the government consider an amendment that would cause such data to be collected through a regulatory framework?

Senators, this is why Senator Harder’s intervention gave me the impetus to introduce a regulatory amendment, as I have done. My amendment will ensure the data of racialized people is collected: a group that comprises one quarter of our population.

With regard to paragraph 241.31(3)(a)(i), section B, the information collection of those who request and receive MAID will be extended to include a person’s race.

Paragraph 241.31(3)(b) of the amendment will ensure that the bill includes the analysis and interpretation of this information including for the purposes of identifying race-based inequities and how race intersects with other forms of systemic inequality in medical assistance in dying.

Ultimately, if adopted by the other place, this amendment would put in place a systemic approach to combating racism and the ways race-based inequality intersects with other systematic inequalities.

Honourable senators, with regard to why we must also consider the way race intersects with and breeds systemic inequality, I believe Dr. Laverne Jacobs, 1 of over 80 witnesses at our pre-study report, said it best when she explained:

Racial stigma forms part of anti-Black racism. . . .

As a result of social structures that have been built on biased understandings of social existence, inequality becomes not just a set of individual circumstances but also a much larger web of systemic discrimination.

We know that the current government is not blind to the issues posed by this huge information gap. I was extremely appreciative that Minister Lametti, and the officials both from Justice and Health, were very forthright in their admission that absolutely no race-based data had been collected. As you are aware, senators, the gender-based analysis plus is carried out to ensure that all legislation and policy adequately acknowledge and account for the lived experiences of women, men and people with gender identities, as well as for other factors such as age, sexual orientation, disability, race, education, language, geography, culture and income.

The fact is, since 2016 the government has publicly committed to collecting this data among its gender-based analysis plus study criteria. When we were given a copy of the gender-based analysis plus to show the impact of Bill C-7 on racialized communities, this was not considered. I had asked the minister if racialized communities considered. He originally thought they were, but when we received the report, he was forthright. He said, “No, they were not considered.”

This amendment solely aims to ensure this commitment is being fulfilled and the rights of racialized people, almost a quarter of the population, are also being fulfilled.

The government has long had access to existing federal framework plans outlining just how seamlessly this method of analysis could be statistically gathered on a national level. The Canadian Institute for Health Information (CIHI) stated in July 2020:

The lack of race-based data in the health sector in Canada makes it difficult to measure health inequalities and to identify inequities that may stem from racism and discrimination.

CIHI has proposed a pan-Canadian standard for collecting race-based data. What is more, back in 2019, the government published its own document entitled Building a Foundation for Change: Canada’s Anti-Racism Strategy 2019–2022. In the document heading concerning Building Awareness and Changing Attitudes, it specifically lists data and evidence as one of the most effective and important ways to do so.

Honourable senators, our path forward has long been clear, and today we have an unprecedented opportunity to clearly tell the government that the time for change is now: not tomorrow and not next year.

As I mentioned earlier, one in four people has been left out of the data collection. While we can all agree that this is unacceptable, we do not all know what it feels like to be “the one” in that statistic.

There have been many times in my life when I have been in a room and I looked different, sounded different and was even dressed differently from others. While I am very proud to be who I am, I must tell you that it can be very lonely.

Throughout my life, I’ve endured countless instances of racism. I truly cannot count the number of times when, upon arriving at the Senate Chamber, I was told that this is the senators’ entrance only.

I am very grateful to represent the province of British Columbia in the Senate of Canada, and I will be perpetually grateful to Prime Minister Chrétien for giving me this opportunity. I have always been committed to advocating for the one in four, and that is why I am introducing this amendment. We must not accept the status quo; we must push for change.

My father used to tell me until the day he died, “Do not let anybody ever tell you that you are not equal to them. All human beings are created equal.” This is why we all deserve the same degree of consideration.

Last year, here in the Senate, Senators Plett, Lankin, Moodie and Bernard, among other senators, led our chamber in taking the next steps forward and standing firmly against racism in this place and across our country as a whole.

Honourable senators, I humbly ask that you please join me as we take the next step to ensure that disaggregated data — specifically race-based data — is systematically collected on a national level in order to enable us to move forward as a country together.