Therefore, honourable senators, in amendment, I move:

That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 6, by deleting lines 16 to 19.

Unless you can say with absolute certainty that all words, sounds or gestures are involuntary, I urge you, honourable senators, to also err on the side of caution and support this amendment. Thank you.

Honourable senators, Senator Martin, as you well know, I do hear and respect your concerns, but I do not agree and I will oppose this amendment.

To put this in context, Bill C-7 would allow MAID for someone whose natural death is reasonably foreseeable without requiring final consent, which is commonly referred to as the Audrey Parker amendment.

In this scenario, an individual must be at risk of losing their decision-making capacity before the date chosen to receive MAID, and the individual must have already entered into an arrangement in writing with their practitioner, providing advance consent.

Pursuant to the proposed amendments, advance consent would be nullified if the individual indicates, through words, sounds or gestures — such as an involuntary reflex — that they are refusing or resisting MAID. In that case, naturally, the practitioner would not be able to proceed.

The amendments also very clearly state that reflexes or involuntary movements — emphasis on “involuntary,” such as twitching when touched — would not constitute refusal or resistance. Some of our colleagues who are far more qualified than I am know that medications can affect a person’s behaviour in such circumstances. For example, medication could render an individual incapable of demonstrating refusal or resistance or could cause them to become agitated.

If a person whose prior consent was no longer valid because they showed signs of resistance or refusal subsequently regains their decision-making capacity, they can take the necessary steps with their practitioner to receive MAID once they have that capacity.

In short, honourable senators, this justifies the inclusion in the bill of the paragraph on the waiver of final consent and that of the clarification that involuntary bodily reactions to contact do not constitute resistance or refusal.

In the government’s view, both the clause on resistance or refusal and the clarification are clear and appropriate.

With or without the “for greater certainty” clause, practitioners, as we know, will always use their expertise, competence and judgment to determine whether the patient is demonstrating refusal or resistance, or merely reacting involuntarily to contact. But by removing the “for greater certainty” clause, the proposed amendment may generate confusion for practitioners, who may no longer have a clear sense of what the law requires or permits.

I think the clarification is important, and for the reasons I have expressed I will not vote in favour of this proposed amendment.

Honourable senators, I won’t have much to add to what Senator Petitclerc said, because she said it clearly and I agree with everything she said.

I would like to add a quote from Dr. Stefanie Green, President of the Canadian Association of MAID Assessors and Providers:

The issues of consent, and capacity even, are essential in everything we do. And that is why we take so much time to assess patient support even before that decision to proceed happens. I think you’re asking me specifically about the moment that MAID is being provided. In that context right now, of course, we need to obtain final consent immediately. In the context of this amendment, we would be looking at a patient who has been deemed to have lost capacity to make that decision but has made an advanced request to proceed. There is certainly a difference that we all can recognize in the flinch of an arm when a needle is going in to start an IV, versus someone who looks at you and says, “Who are you?” or, “Why are you here?” or, “Please stop.”

There is a very obvious manner to make those distinctions. And I think that our clinicians have proven themselves to be very, very careful in this past four and a half years and will be especially more so in such a condition.

In summary, a patient can, when death is foreseeable, waive the right to provide the final consent at the time of administration of MAID. Why does he or she do that? Because they fear that they will lose the ability to consent. So they waive that. So the doctor or the medical practitioner walks into the room to administer, and they will face a person who is no longer able to consent. However, despite that, the government said if this person has shown signs that they are resisting — opposing — MAID, then the doctor should not provide MAID. So this is the principle.

This is only a clarification to say that a reflex, or some kind of thing when they see a needle or you place the needle in the arm and there may be some movement, is not a sign that the person is saying, “No, stop.” This is really better protection for the patient, who has already waived his consent and is no longer able to consent.

Honourable senators, I won’t speak for long as I intend to enter the debate again in a few days. I do want to say a few words about this amendment. In my view, the amendment provides needed caution and clarity in an area of law and ethics that is entirely new.

As Senator Martin noted, we currently have two clauses in the bill which will, inevitably, result in added confusion and contribute to ex post facto disputes about whether consent was properly given.

This legislation is, in essence, compounding the conditions where families, practitioners, lawyers and judges will argue about whether a patient may have changed their mind, notwithstanding the advance directives that have been given by that patient perhaps years, even decades, before.

I think it is worth restating what clause 3.4 states:

Once a person demonstrates, by words, sounds or gestures, in accordance with subsection (3.2), refusal to have the substance administered or resistance to its administration, medical assistance in dying can no longer be provided to them on the basis of the consent given by them under subparagraph (3.2)(a)(iv).

But then clause 3.3 states:

For greater certainty, involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance for the purposes of paragraph (3.2)(c).

While it may often be clear what was an involuntary word, sound or gesture, it is absolutely certain that this will not always be clear, particularly after the fact.

What is to be done if there is a difference of opinion about whether a particular sound, gesture or word was involuntary?

What if one person in the room, perhaps someone who may have known the patient for years, regards a particular gesture that others consider “involuntary” as, in fact, actually constituting a substantive objection?

I agree with Senator Martin that, as a minimum, we should ensure in this legislation that we try to err on the side of caution in interpreting the will of the patient during the MAID process.

This issue is all the more important because, under the legislation, there is no limit to how long in advance a person can arrange in writing for MAID to be provided if they lose capacity. Theoretically, the arrangement could be made for years into the future, calling into even greater question the gestures and words a person utters during the MAID process.

Thomas McMorrow is an Associate Professor of Legal Studies in the Faculty of Social Science and Humanities at Ontario Tech University. He has stated the following in relation to this issue:

Having the capacity to give or withdraw consent at the moment of provision is the lynchpin of the system of safeguards governing MAiD in this country. In other words, receiving MAiD requires contemporaneous, not advance or implied, consent. This protects people from having their lives ended against their will.

Professor McMorrow raises additional questions about what happens even when there is agreement that a particular sound or gesture may not have been involuntary and the MAID process is stopped.

So it begs the questions: Can different potential dates for death be established as part of advance consent?

In those circumstances, could MAID be attempted again later, even if dissent stopped the process in an initial attempt?

There is already incredible uncertainty in this legislation without compounding it further as a result of disputes over what constitutes a voluntary versus potentially involuntary objection.

The uncertainties built into this legislation are unfortunately inevitable, given the somewhat artificial — and I would suggest somewhat irresponsible — way in which the government has rushed this legislation in an entirely new area of Canadian law.

Yet, we do have to have underlying principles in Canadian law around advance consent that we should still seek to apply.

In 2018, The Expert Panel Working Group on Advance Requests for MAID, formed by the Council of Canadian Academies, noted that consent includes the following principles:

Healthcare consent must be informed. . . . Informed consent must be voluntary . . . .

Physical dissent on the part of the incapacitated person precludes participation, regardless of any written directive.

In my view, the proposed amendment is consistent with these principles.

This amendment reinforces the clarity and caution that one should expect to accompany such critical matters. I’m going to support this amendment and I encourage all honourable senators to support it as well.

I would like to ask a question.

You have 35 seconds.

Doctors who have been working with MAID are in a privileged and unique situation. Do you know how long it takes doctors to gain expertise in the interpretation of such a unique type of communication that patients have, when it’s not oral or verbal and instead you’re looking at sounds and body movements? Will other doctors or medical people gain this expertise?

Senator McCallum, I’m sorry, the time has expired.

Honourable senators, I wanted to start by sharing a few thoughts around the question of the validity of MAID procedures and some of the information that we have received from witnesses that seeks to shed some light on the comparison between, completely frankly, an unrelated set of procedures; that of lethal injection.

My office started to look at the experience of MAID providers some months ago, and we conducted a survey of 17 clinicians throughout the country in various settings; clinicians who work within urban settings and within large groups, some who have conducted hundreds of cases of MAID procedures. We also spoke to physicians who worked in the more geographically isolated areas, sole practitioners who were conducting MAID procedures as well.

We learned certain key things from them. What we learned was, in fact, these witnesses, these people who are all only medical experts in this area, have each conducted hundreds of MAID procedures. All of them described their experiences as they witnessed these procedures, bar none, as peaceful, restful, to the point of happiness in some cases, and undisturbed individuals who passed through a MAID procedure.

They described no instances where people struggled, fought, had violent reactions or some of the descriptions that we have heard from witnesses who attempt to compare lethal injection to MAID procedures.

What we heard from witnesses who have had some experience on a topic — lethal injection — but who are not medical experts on MAID, was a description of a very different procedure from the protocols and the oversight that we provide here in Canada. A scan of what the protocols look like, and what they are, reveals that there’s consistency across the country.

There are five drugs, in some cases six drugs, used when required. There is a similarity in the drugs that are being used, and there is a consistency of approach used by all practitioners. There is clear documentation of the procedure, and the storage and availability of the information that is collected are transparent. It’s retrievable, colleagues. It’s something that can be examined. It doesn’t disappear into nothing. It’s there.

In fact, this is very different to what happens in lethal injection, where there may or may not be a clinician of any sort present, whether it be a nurse or a physician; where, in fact, there may not be as carefully controlled circumstances. Where, in fact, the exercise of that procedure may be quite different and have different outcomes.

Much of the intervention of MAID has focused on this irrelevant comparison, and while interesting, we cannot verify the expertise of the witness that we heard. He has never, by his own admission, had peer-reviewed research publications or any other contributions to the literature in this area that we can examine and that we can verify as to whether it is, in fact, credible information.

Secondly, there was a paper published. The details are a lung transplant done from a home in Ontario. You heard about that from Senator Kutcher just now. If you’d like, we can share that information with you. Andrew Healeh et al provided that information. He talks about the experiences he has had in many cases. He talks about the patient he had with the MAID procedure in November, the one you just heard about, and the fact that she did not have pulmonary edema when her lungs were removed for transplant.

We have also learned that there are a number of patients who allow their organs to be transplanted, patients who opt for the MAID procedure and donate their organs. In general, what we know about organ transplantation —

I’m sorry, Senator Moodie, your time has passed and we have to move on to debate with Senator Mégie.

Honourable senators, I second everything that my colleagues, Senator Kutcher and Senator Moodie, said. However, I’d like to raise one small point that is often problematic. Sometimes, patients move their arms, and people might interpret that as a sign of refusal or unwillingness. Most of the time, when that happens, the patient has already begun to receive the first dose or one of the first doses of sedative. They should be relaxed, and they are. However, a phenomenon called fasciculation may occur. These are small, involuntary muscle movements. To the uninitiated, the patient pulling their arm away may appear to signal refusal. Doctors are aware of this phenomenon and know when they can continue, because these movements aren’t evidence of refusal on the part of the patient. Often, the patient’s loved ones can say if the patient expressed that desire. The doctor can also stop and ask the question again if the patient isn’t already in a coma.

That’s the nuance I wanted to point out to complement what my colleagues have said. With regard to medication, you received a document that provides all the details, and we were able to have it confirmed by colleagues from all the provinces. If you read it carefully, I think you should have grasped the difference between the dosages that are used for medical treatment and the much higher dosages used for lethal injections, which are given in the United States, but not in Canada. Thank you.

Are honourable senators ready for the question?

In amendment, it was moved by the Honourable Senator Martin and seconded by the Honourable Senator Plett:

That Bill C-7, as amended, be not now read a third time, but that it be further amended in clause 1, on page 6, by deleting lines 16 to 19.

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

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

I believe the “nays” have it. I see two senators rising.

We’ll have a vote at 9:09 p.m. Call in the senators.

Senator Manning.

Honourable senators, I’d just like the opportunity once again to explain my vote. I do not agree with the origin of MAID, therefore, I cannot agree to any of the amendments to the legislation. Thank you.

Thank you.