Honourable senators, I rise today in support of Senator Plett’s amendment, which seeks to ensure that our constitutional rights of freedom of religion and conscience are reflected in the bill before us.

This is the second time we are considering this issue as it relates to medical assistance in dying. It was also raised during the debates over Bill C-14, and there is no doubt in my mind that it will continue to find its way back into this chamber until it is properly dealt with. It was the Supreme Court itself that flagged this issue in Carter v. Canada and anticipated that Parliament would take the steps necessary to address it. In its decision, the court said this:

In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying. The declaration simply renders the criminal prohibition invalid. What follows is in the hands of the physicians’ colleges, Parliament, and the provincial legislatures. However, we note . . . that a physician’s decision to participate in assisted dying is a matter of conscience and, in some cases, of religious belief. . . . In making this observation, we do not wish to pre-empt the legislative and regulatory response to this judgment. Rather, we underline that the Charter rights of patients and physicians will need to be reconciled.

Honourable senators, it was the Supreme Court’s clear expectation that Parliament would address this matter, and yet to date we have failed to do so. It is my hope that we will not fail once again but that we will pass this amendment and provide physicians and health care practitioners the protection they are asking for.

Regrettably, when Justice Minister David Lametti appeared before the Senate’s Legal Committee, he dismissed the issue, stating that: “. . . nothing in the legislation forces a practitioner to furnish MAID to another person.” Several senators have repeated that mantra as though it addresses all problems of conscience. But this does not address the core issue, which is a matter of conscience.

This matter of conscience is fundamental in a free society, where freedom of conscience and religion are protected. It is absolutely clear that more robust protections are required in this legislation in order to preserve those fundamental freedoms.

In this regard, I think it is useful to refer to what we have heard from physicians at committee. Dr. Ewan Goligher made the point clearly when he said:

. . . referral makes a physician morally culpable. Just as I should not refer for euthanasia, nor should I refer for conversion therapy nor should I refer a patient to a physician who will sell prescription opioids — all of those acts of referral would be unacceptable and ones for which I ought to be liable.

Similarly, Dr. Thomas Bouchard stated:

Our participation, including the form of arranging or referring for this legal service, would be an endorsement or recommendation of following through with MAID, which we can’t do.

Dr. Ramona Coelho told our Legal Committee this:

A referral is when I say: This is something I think is truly good for the patient. So I am going to, because it’s not part of my expertise, I am passing it on to a specialist to complete the care that I believe is good. . . . There is an ethical implication in a referral. It is not just a piece of paper and a signing off to someone else.

Very recently, the Ontario Medical Association wrote to our committee, stating this:

Doctors should not be asked to provide care that is in contradiction to their deeply held beliefs. . . .

It is the view of the OMA that introducing conscience rights directly into legislation would be a positive solution that would strike the right balance between the Charter rights of physicians and their patients.

There can be no doubt this is a fundamental matter of conscience. For centuries, the medical profession has been governed by principles that emphasize the central importance of providing for the care of patients and not of inflicting harm on them in violation of a health care provider’s conscience. It would be unthinkable for any legislative body to propose to suddenly change age-old principles and instead demand participation in a manner that violates the conscience of many medical professionals. For reasons of conscience alone, I believe Senator Plett’s amendment is vital, and many medical professionals fear the possibility of being forced to do something that may be against their conscience.

As referenced in our Senate committee’s report, Marilee Nowgesic of the Canadian Indigenous Nurses Association clearly expressed her concerns about meaningful protection for the conscience rights of Indigenous health care workers. Specifically, she asked:

Are they going to be punished in their workplace if they do not because they’re the only nurse or nurse practitioner in that community that could do this?

As legislators, we have the obligation to address these concerns. If some senators are not moved by the conscience argument alone, we should at least be concerned by the implications of forcing medical professionals to do something that many believe goes against their conscience.

Dr. Ewan Goligher told our committee:

. . . I have friends and colleagues who have been forced to change practice, in particular, to stop practising palliative care because they are put in a difficult situation where they could face professional discipline for being unwilling to make an effective referral for euthanasia.

I also know of colleagues who have retired early . . . .

Medical professionals are among the most mobile working professionals in our economy. They are in high demand, not only in Canada but in the United States. I fear that we may inadvertently contribute to placing even greater strains on our health care system if we fail to make every effort to provide what is really a very basic form of conscience protection in the face of the changes being introduced with this legislation.

Honourable senators, this issue won’t go away and it is essential that it be addressed properly. Today we can take a step towards making that a reality by supporting Senator Plett’s amendment. Thank you.

Honourable senators, I will not speak in favour of this amendment, and I will explain why. Senators Gold and Mégie explained the principles at stake and the balance to be struck between the freedom of conscience and the right of patients to receive medical assistance in dying, so I will not cover that.

I will do the exercise I was called to do yesterday in terms of the analysis of a proposed new criminal offence, which reads:

Every person who compels another person to provide or facilitate the provision of medical assistance in dying is guilty of an offence punishable on summary conviction.

The idea here is to provide a fix or a solution for two problems identified by Senator Plett in his speech. The first is about a hospice in B.C., a non-profit society operating on provincial public land and receiving from the provincial government, through the regional health authority, $1.5 million per year in funding.

Further to the adoption of MAID, the regional health authority asked the Delta Hospice Society to provide on-site MAID if required by a patient. Failing that, it would be deprived of public financing. In other words, the regional health authority wanted to guarantee access to MAID.

The second scenario to which Senator Plett referred is the obligation imposed upon a physician who objects to MAID to provide a referral to a colleague or someone else who could provide or assist in providing MAID.

He provides a solution to these two problems, saying that the nature of that answer can be found in criminal law: “Every person who compels another person . . . .” He says that the Delta Hospice Society is compelled because if they do not provide it, they won’t get the financing. The answer is, unfortunately, off the mark.

Person is not defined in the Criminal Code. It is defined in the Interpretation Act, and the definition includes an individual or a body, but as stated in the Interpretation Act, section 16, it does not apply to the Crown. A Criminal Code provision does not apply to the Crown unless the Crown is specifically mentioned. And this principle, of course, has been affirmed over the years — for more than 200 years — but I can only quote briefly from the Supreme Court in Eldorado Nuclear, “Section 16 of the Interpretation Act makes it clear the Crown is immune unless expressly bound.” Therefore, this will not apply to the B.C. government. This will not apply to the regional authority in B.C., and this will not apply to the Delta case where the regional authority was providing financing. To the first problem Senator Plett raised, this is not a solution.

The second problem is in regard to obligations to make a second reference to a doctor. If we look at the situation in Quebec — and Senator Mégie referred to it — it’s section 31 of the loi concernant les soins de fin de vie that provides that if a doctor receives a request for MAID and doesn’t want to be engaged in that process, he has an obligation to transfer the request for MAID to another doctor or to the director of the hospital where he’s practising or to the director of the regional health authority.

This is the law, and it cannot be changed by the Criminal Code because the provincial Crown — Quebec in that case — has made it through the law and is not covered by what Senator Plett is proposing.

In Ontario, the College of Physicians and Surgeons have adopted two policies that say those who object to MAID must provide an effective referral to another physician or professional health or an agency. They have to provide a referral. Senator Plett says this is terrible. He doesn’t want doctors to have to do that because that’s going too far.

That case was brought before the Ontario Divisional Court, a branch of the Superior Court. It was appealed to the Ontario Court of Appeal. The Ontario Court of Appeal recognized that some of the doctors had their conscience rights infringed by that but that the right of the patient, on the other hand, was also a right to be protected. Pursuant to section 1 of the Charter of Rights and Freedoms, the balancing meant physicians had to provide a referral.

What is Senator Plett suggesting to us in this exception to the principle? It says there’s an exception to the offence he wants to create. A person who provides information to a person who requests it does not facilitate the provision of MAID. Therefore, if the Ontario College of Physicians and Surgeons is ordering every doctor to answer questions that are asked by patients about MAID, this is covered by his exception. Not only will they have to make a referral, but they will also have to provide information. I think he’s missing the target. Thank you very much.

Honourable senators, I rise in support of Senator Plett’s amendment to ensure that Bill C-7 contains explicit protections for the conscience rights of practitioners.

During Senate committee hearings on Bill C-7, we heard from many witnesses who raised this issue repeatedly. They expressed deep concern over the lack of protection for conscience rights for those who could not, in good conscience, assist with medical assistance in dying. They urged us to address this deficiency in law.

Their testimony underscored how the failure to provide adequate protection for conscience rights is not some academic exercise but a very real struggle, impacting physicians, health care practitioners and palliative care institutions.

Dr. Jaro Kotalik, professor at the Northern Ontario School of Medicine expressed it this way:

In spite of the statement in the law of 2016 that nothing in this MAID act affects the genuine freedom of conscience . . . it remains the fact that practitioners are under pressure, especially in some provinces, by administrators and medical colleges to set aside their deep-held convictions.

Minister Lametti repeatedly points to the preamble in Bill C-14 in responding to such concerns that the protection of conscience rights is already in place. But, as Dr. Kotalik, Dr. Sephora Tang and other professionals have claimed in practice of the MAID regime, those protections do not go far enough. They called on the Senate to move an amendment for explicit protection as proposed in Senator Plett’s amendment.

As legislators who enacted Bill C-14 and soon, perhaps, Bill C-7, it is our duty to add protections for everyone directly impacted by the legislation, including the medical professionals who are telling us that they do not feel protected. I believe in protecting the rights of Canadians to have access to MAID as much as in protecting the most vulnerable people from having MAID wrongly used.

I also believe in protecting people who feel pressured to offer MAID against their core beliefs as much as protecting all those administering the MAID regime to have the resources to do their job well. I believe in the rights of all these individuals, and this amendment is one step in protecting one of the groups that will be directly impacted by the passage of Bill C-7.

In fact, a news headline that read “Medical schools should deny applicants who object to provide abortion, assisted death” in a mainstream media outlet points to the need to protect conscience rights in Bill C-7 before any such discriminatory policies ever become a reality.

Honourable senators, this is not an ideological conversation about theoretical possibilities. Various witnesses mentioned the reality of physicians and health care workers across the country being forced to choose between their conscience and their profession because they are not being afforded adequate protection of their conscience rights.

As Senator Plett and others have referenced in their statements, even long-standing, well-respected palliative care institutions have been impacted since the passage of Bill C-14. Dr. Neil Hilliard, a palliative care consultant with Fraser East in British Columbia for the last 13 years and associate clinical professor at the University of British Columbia’s department of medicine, told the committee about the Delta Hospice Society. He told the committee how all hospices in British Columbia, excluding faith-based hospices, have been mandated to provide MAID, despite this being against the philosophy and practice of palliative care.

Sadly, the nationally recognized Fraser Health palliative care program has become a vestige of its former self. Dr. Hilliard told the committee how for over 30 years the Delta Hospice Society has been committed to palliative care but, once MAID was legalized, the hospice was pressured to provide medical assistance in dying on site in spite of the fact that this was contrary to their constitution.

He explained:

There is no protection for institutions of conscience. Contrary to the preamble of Bill C-14 committing to facilitate palliative care, we’ve seen how palliative care programs and hospices have been decimated since the introduction of MAID. . . . Without protection, we risk losing our specialty. Without protections, the 95% of Canadians who wish to live well until they die naturally will face limited access to true hospice palliative care.

We have heard from medical professionals in various regions of the pressures they feel about how the law has been applied in practice. Their conscience rights deserve to be protected as much as the rights as those who choose to offer MAID. Both protections are needed, just as both palliative care and the option of MAID with safeguards are needed. Not one or the other, but both.

I am not a legal expert. I’m not a health professional, but when we hear their pleas for us to put those protections in the law, whether one agrees or disagrees with the choices of those whose conscience does not permit them to assist in MAID, there is no denying the fact that their right to make such a choice is protected by the Constitution and must be reflected in our laws.

Honourable senators, I believe that Senator Plett’s amendment will help achieve that, which is why I will be supporting it, and I encourage you to do the same. Thank you.

Honourable senators, I have two or three points to make with respect to this amendment. I am speaking in opposition to the amendment.

First, I have no doubt that Senator Plett’s amendment with respect to these conscience rights is heartfelt, and the messages that he and all of us have received from faith communities and others are equally heartfelt. I respect that.

However, my second point is that the mechanism he is choosing to try to achieve his goal is, for various reasons, ill-founded and unwise.

I don’t know what others were doing over the Christmas season, but I was spending a fair amount of time reading everything I could get my hands on to better understand medical assistance in dying, including every word of every piece of legislation that has been written in the states of Australia, including Victoria. I was searching for the best understanding I could get on this important and very difficult subject.

One of the things I learned in reading about the legislation in the State of Victoria in Australia, and which Senator Plett relied upon yesterday, is that when translated into the Canadian context, the State of Victoria was using the equivalent of provincial authority when it came to conscience rights. Indeed, the Victoria legislative sanction for violations of conscience rights is professional misconduct, which in Canada is specifically the kind of work that provinces and regulatory bodies for health professionals undertake.

This is important because, as I am sure he appreciates, Senator Plett’s proposal is an exercise of provincial jurisdiction disguised as a Criminal Code amendment. This raises two concerns: First, it seems to me highly unusual and inappropriate for us to try to use the Criminal Code essentially to invade provincial jurisdiction.

On this point, Senator Plett’s own words make that point. He recounted to us a series of provinces who are doing, from his perspective, “good work” on these questions and a few who are not. But the fact that some are not, even if he is right, does not justify Ottawa wandering into provincial jurisdiction. Indeed, the fact and existence of provincial jurisdiction, including in health, is the very reason why provinces exist: to make those choices.

Indeed, it’s actually one of the reasons why we exist, which is to convey regional and provincial perspectives to Ottawa and not the opposite; that is, not to convey Ottawa’s perspective into provincial jurisdiction and impose it upon them.

Let me go further. This is surprising to me as well to come from a representative of the Conservative Party of Canada, for this reason: During all of the time that I have followed federal-provincial relations, including a dozen years working in a senior position in a provincial government, Conservatives, in a principled way, have always championed respect for and the protection of provincial jurisdiction. This was true when Ralph Klein was the Premier of Alberta, when Gary Filmon was the Premier of Manitoba, when Mike Harris was the Premier of Ontario and, most recently and perhaps most powerfully, when the Right Honourable Stephen Harper was the Prime Minister of Canada.

There are different ways in which this principle was advanced by Conservative leaders. The phrase “respect for roles and responsibilities” are the catchwords in Canada; “states’ rights” by conservatives in the United States. But the bottom line was — and I thought still is — when it came to questions of federal and provincial jurisdiction, the principle advanced by Conservative leaders was “stay in your lane.” Indeed, I’m imagining the Right Honourable Stephen Harper, if he’s listening to this debate right now, channelling Senator Plett and saying through the ether, “I know you’re very principled about this, but please stay in your lane.” So it’s surprising to me to hear an amendment advanced by Senator Plett that would compromise this long-standing principle.

My second concern is that the use of the Criminal Code in any event is problematic. As many lawyers have told me, this proposed provision is essentially unenforceable. It is structured so poorly that one could never get a conviction. Indeed, you have just heard Senator Dalphond make this point with precision. If that is true, the legislation amounts to no more than an in terrorem threat to the many medical professionals in this country who are trying their best to serve their patients with integrity. This is not an honourable and is almost assuredly an unconstitutional use of the Criminal Code, our most powerful law short of the Constitution itself.

My last point is this: On these questions, it is the health professionals who know best and the associations that govern them in the public interest. This is a question that should continue to be left to them. Thank you.

Honourable senators, I rise to speak to this amendment on Bill C-7. I intend to vote against this amendment because I believe that clinicians do have well-recognized conscience rights in place in provincial regulations across this country, and that this amendment seeks to accomplish what has already been decided against by the courts.

The medical profession has sought to balance the rights of patients against the moral conscience of clinicians for decades. We see this in the expansive body of research and writing in the medical literature. We see this in the training received by clinicians, training that I’ve been a part of as a clinical teacher for the past 25 years.

The training provides nurturing, the development of skills such as compassion, listening, empathy and sensitivity to the non-medical factors that affect patients. We see this in the bodies that regulate the clinicians across Canada, bodies that have established clear guidelines that address the need for this balance between the rights of patients and the moral or religious conscience of clinicians — regulatory bodies such as the College of Registered Nurses of Manitoba; the College of Physicians and Surgeons of Ontario; and the Quebec college, the Collège des médecins du Québec.

In Manitoba, guidelines have been established which match the three regulatory nursing bodies there that mirror similar policies across the country where clinicians who exercise their conscience right to opt out from providing MAID have to inform the patient that they will not be participating in this process, must provide the patient information or provide access through deferring and referring to someone else to provide that information, and must continue to provide ongoing care. This speaks to the expectation that physicians should not abandon their patients. The College of Physicians and Surgeons of Ontario, in its ethics rules:

 . . . recognizes that physicians have the right to limit the health services they provide for reasons of conscience or religion.

. . . physicians’ freedom of conscience and religion must be balanced against the right of existing and potential patients to access care.

These regulations and standards align completely with the code of ethics elaborated by the Canadian Medical Association.

The Government of Quebec has embedded conscience rights and the need for effective referral in their law in sections 31 and 50 of An Act respecting end-of-life care.

Colleagues, clinicians do not solely practise according to their moral compass but according to rules backed by evidence and experience, rules that ensure best practices, that respect patients’ rights and autonomy as well. This amendment seeks to make the rights of patients subordinate to the conscience of clinicians. In a world with this amendment, patients’ access to MAID would depend on whether or not fortune provided them with the right clinician. Dying patients or those suffering intolerably would have to undertake their own investigations into MAID, according to Senator Plett, without the guidance or support of clinicians. This would be cruel, a lack of compassion and caring. This is not how we ensure constitutionally protected rights.

It is my interpretation that this amendment would criminalize the colleges, health authorities and other organizations throughout the country, including in Manitoba, and would conflict with Quebec law.

Furthermore, the standards established by these regulatory bodies have been tested in court. The 2019 decision of the Ontario Court of Appeal has addressed the careful balance that needs to occur, considering the rights of patients against the moral conscience of practitioners. Where irreconcilable conflict arises between a physician’s moral and religious beliefs and a patient’s rights to information and autonomy, physicians’ professional obligations and fiduciary duty require that the interests of the patient prevail. That’s the world I want to live in.

Colleagues, clinicians involved in providing MAID have told us they seek clarity in the law. They want clear definitions. They want to know that they’re practising within the law. This amendment would only add a layer of confusion. “Compel to facilitate” is a phrase that is both vague and has potentially dire consequences for nurses, physicians, colleges, regulators and employers, who could be seen as compelling clinicians under this amendment simply because they issue and enforce rules that require effective referrals.

The requirement of good clinical practice — transfer of care, it’s called — with formal exchange of relevant patient information could be construed to be facilitation of MAID and would be subject to summary offence for a clinician. I refer you to Senator Dupuis’ concerns raised during yesterday’s debate on the perils of vague language in regards to the second clause. If this amendment becomes law, there is a risk that immediate legal action would be taken against regulators.

Honourable senators, while I respect the intention of Senator Plett’s amendment, I believe that we have sufficient conscience rights embedded in existing regulations that respect the moral and religious beliefs of clinicians. If this amendment were to pass, patients would lose significant access to MAID and therefore access to constitutionally protected rights. Thank you.

Honourable senators, I’m concerned about this amendment for the following reasons. As we have heard, medical practitioners already have the right to choose not to perform a MAID procedure, but do have an obligation to refer their patient to another practitioner. Senator Plett reminds us that, in some jurisdictions, this is achieved through different means.

These approaches seem to me to be sufficient in balancing rights and responsibilities. Senator Moodie had, tonight, reminded us that regulatory colleges across the country have worked this out.

There have been many references to the Ontario court decision in this respect. I just want to read a section from that, because I think it’s relevant.

. . . the appellants have no common law, proprietary or constitutional right to practice medicine. As members of a regulated and publicly-funded profession, they are subject to requirements that focus on the public interest, rather than their interests … The practice of a profession devoted to service of the public necessarily gives rise to moral and ethical choices. The issues raised in this proceeding present difficult choices for religious physicians who object to the Policies, but they do have choices. While the solution is not a perfect one for some physicians, such as the individual appellants, it is not a perfect one for their patients either … [The Policies] represent a compromise. They strike a reasonable balance between patients’ interests and physicians’ Charter-protected religious freedom. In short, they are reasonable limits prescribed by law that are demonstrably justified in a free and democratic society.

Honourable senators, when we find this sort of balance, either in law or in public policy, it’s worth preserving.

A second concern with conscience rights, of course, is that it would likely also result in the exercise of those rights in a potentially negative way, in influencing not only patients’ inclinations and other choices, but also the perspective of other medical staff in a health care setting. This would not be consistent with the constitutional right of individuals to access MAID.

I think we can also safely conclude that the conscience rights proposed here would create particular difficulties in terms of access for patients in rural and remote communities across the country.

Colleagues, for these reasons I oppose the amendment. Thank you.

Are senators ready for the question?

All those opposed to the adoption of the motion in amendment, please say “nay.”

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

All 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.

The vote will be at 7:54. Call in the senators.