Honourable senators, I rise today to speak on the message from the other place on Bill C-7. I dedicate this speech to the First Nations and disability communities who continue to courageously fight for a better world for the people and the communities which they advocate and speak for.

The Liberal Government’s commitment to renewing a nation-to-nation relationship with Indigenous peoples in Canada has been made with promises to make progress “on issues most important to First Nations, the Métis Nation and Inuit communities.” Yet Canada continues to miss key opportunities to meaningfully engage and collaborate with First Nations, the Métis Nation and Inuit peoples when it comes to a critical part of their progress toward self-determination. I am speaking of how legislation currently works and how the laws generated have, both historically and presently, had negative consequences on Indigenous peoples.

Since first contact, Indigenous peoples on Turtle Island have been actively resisting colonial violence, as the institutionalization of racist and colonial values and laws has led to Indigenous peoples experiencing discrimination for simply being Indigenous and for being the original peoples who lived in a land declared by others as terra nullius, or nobody’s land.

First Nations have had to create organizations and groups that support their road back to self-determination and the self-government structures that had existed but were outlawed. Similar organizations and groups have been created by the disability community for their continued fight for recognition and agency as well. These First Nations and disability community leaders and advocates continue to promote the well-being of their communities. Despite the significant amount of work and progress they have made, First Nations and the disability community continue to experience a myriad of intricate challenges while organizing for change. This has been due to the settler colonial state of lawmaking under which they are operating, where they have been persistently excluded, silenced and surveilled.

How does the colonial state continue to express power and control over another sovereign nation, the First Nations, as well as the disability community?

Senators, don’t close your eyes, ears, hearts and spirits to my speech. I’m not here to blame or shame anyone. I need you to understand where we stand and why we are where we are today. As senators, what is our understanding of the impact of laws on the First Nations and the disability community, especially when I tell you that the majority of laws in Canada have not been just to First Nations or the disability community?

Honourable senators, when I entered the Red Chamber in 2017, I did so with excitement, with disbelief and with naïveté. In the last four weeks, I have come to realize that by having 10 Indigenous senators in this chamber at one time doesn’t automatically remove all the deep structural racism that continues to drive the law-making process on Parliament Hill in Canada. We must all be vigilant as we look at the deep structural and systemic colonial processes and policies in place and we must work together to change them. Otherwise we will continue to create an ever-expanding gap of inequity, injustice and violence on First Nations due to the inter-jurisdictional gaps that continue to be ignored.

How do I, as a First Nations senator, take the steps necessary to mitigate these risks we have unilaterally placed on the peoples through the laws we’ve helped to pass? How do I hold myself accountable to my relations who have put their trust in me and in the Senate? Being accountable to my relations means understanding that I, as a senator, am part of this law-making process, which therefore makes me accountable to the people who must fall under these laws that we pass, most times without their knowledge and consent.

What are the consistent themes in the stories of First Nations and the disability community that are not considered in the bills we review, including Bill C-7? These troubling patterns include no meaningful consultation with the appropriate organization or advocates; no clear understanding of how the bill is being understood or explained to different sections of the population, including health professionals; no data to tell the stories of the inequalities and inequities that prevail; no opportunity given to discuss the relevant issues for specific groups, for example, that assisted dying is not part of some cultures or that suicide is an epidemic in some communities.

Honourable senators, in Bill C-7, what are the anticipated impacts on women and other marginalized groups? Disability advocates have argued for increased supports for people with disabilities, rather than doing the exact opposite by extending the availability of MAID. In 2019, the United Nations Special Rapporteur on the rights of persons with disabilities recommended that Canada establish adequate safeguards to ensure that persons with disabilities do not request MAID simply because of the absence of community-based alternatives and palliative care.

Have these safeguards truly been put in place? Consider the following. According to the GBA+ on Bill C-7, which was undertaken by Minister of Justice David Lametti, it says on page 4:

Women have higher rates of mood disorders and generalized anxiety disorder than men, while men have higher rates of substance use disorders. It is important to note that the Statistics Canada study that drew these conclusions is likely underestimating the rates of mental illness, as it did not include persons living on reserves and other Indigenous settlements, full-time members of the Canadian Forces, and the institutionalized population, many of whom are extremely vulnerable.

That analysis also states that:

There are gender-specific risk factors for common mental illness that disproportionately affect women, such as gender-based violence, socioeconomic disadvantage, low income and income inequality, low or subordinate social status and rank and unremitting responsibility for the care of others. The high prevalence of sexual violence to which women are exposed and the correspondingly high rate of Post-Traumatic Stress Disorder following such violence, renders women the largest single group of people affected by this disorder.

Gender differences also exist in patterns of help seeking for psychological disorders . . . These gender differences may help to explain why women with psychiatric conditions are more likely than men to request MAID in the Benelux countries. It can be expected that should MAID be made available in Canada for individuals whose sole underlying condition is mental illness, we would see an increase in women seeking MAID for psychiatric suffering, and at younger ages.

There is a very real risk of suicide contagion amongst vulnerable groups following a MAID death, especially if members of the vulnerable group identify with the person who received MAID.

In the Benelux countries, where eligibility for MAID is not limited to those suffering physically, there have been controversial MAID deaths that have occurred, and it can be expected that similar cases would emerge in Canada under this option.

Colleagues, I am reaching out to you to urge you all to work with people who are under threat, as an ally, and to act together and protect one another.

What is occurring in Canada today is not an Indian problem but a Canadian one. In her 2015 book Strong Helpers’ Teachings: The Value of Indigenous Knowledges in the Helping Professions by Cyndy Baskin, a Mi’kmaq and Celtic author, she quotes Patton and Bondi at page 490, saying:

Allies for social justice recognize the interconnectedness of oppressive structures and work in partnership with marginalized persons towards building social justice coalitions. They aspire to move beyond individual acts and direct attention to oppressive processes and systems. Their pursuit is not merely to help oppressed persons but to create a socially just world, which benefits all people.

Baskin goes on to state:

Although the term “ally” is widely used, some believe that it indicates a belief that one is fighting someone else’s battle instead of actually aligning themselves within the battle. For example, when asked about the role of allies in Black women’s activism, bell hooks challenged the term, saying, “If someone is standing on their own beliefs and their own beliefs are anti-patriarchal and anti-sexist, they are not required to be anybody’s ally. They are on their front line in the same way that I’m on my front line.”

Examining one’s own privilege and relationship to it is crucial to becoming an ally, according to Bishop, Kendall and Nattrass. Locating oneself within the systems of oppression, one is part of but trying to work against them, and understanding history and current context are pivotal.

In the same book, Ben Carniol states:

From a mainstream perspective, what I see as being important for an ally is to unlearn a lot of the stuff that we have been socialized to believe from a very young age and has been reinforced day by day with the prevailing narrative of colonialism that is still very, very strong in sometimes subtle ways and sometimes not so subtle ways. That unlearning means a recognition of the oppression of colonialism, a recognition of why people are being oppressed, and that goes back to history. So mainstream allies need to understand about the dispossession, the theft of land, the violation of treaties, the assimilative role of government policies and of mainstream non-Indigenous people in general.

That was from his personal communication in 2015.

Senators, while I know that this road — challenging the underlying institutional racism that exists in the law-making process — will be a long road, I also firmly believe that we are up to the challenge. What choice do we have, as the alternative is to continue to place certain vulnerable subsets of the Canadian population in a continuous place of deficit.

While I will be voting against this message, it is my sincere hope that we can use this moment as a turning point where we undertake to move forward in a more inclusive and understanding way, while ensuring we give voice to those who continue to sorely lack it in the halls of Parliament. Thank you.

Honourable senators, I rise in this chamber once more to speak to the message from the House of Commons on Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

Before I get to the government response and to the reasons why I am unable to support the message, I would like to once again acknowledge senators and their staff, Senate Administration and committee staff who spent so much time and effort throughout the process. I would also like to acknowledge the committee witnesses, other stakeholders and concerned Canadians who emailed us and called us with such courage and determination, and provided the Senate with much to ponder and debate. Everyone’s compelling words, including those spoken by the senators in this debate and Senator McCallum, have left indelible impressions in my heart, mind and soul.

Senators, as you know, Bill C-7 was intended to bring the law into compliance with the 2019 Quebec Superior Court ruling that struck down a provision that allows assisted dying only for intolerably suffering individuals whose natural death is reasonably foreseeable. Unfortunately, if we concur with the message from the House, we will enact Bill C-7, which will go far beyond that. I have no doubt that there are many parliamentarians in the other place who have wanted more time to fully debate the message from our house and the subsequent amendments from this chamber, yet the government’s mismanagement and failure to respond to court decisions and legislative deadlines have resulted in a logjam of bills, resulting in the government invoking closure, forcing parliamentarians to address immensely complex and sensitive issues of — in this case — life and death, with very limited time. With no room for errors, what a shame.

One clear reason to reject the message, honourable senators, was perfectly articulated by one of our colleagues, Senator Judith Seidman. I’m borrowing her words once again, just to add to what I wanted to say. She said:

... we have ... introduced amendments that can be said to exceed both the principle and the scope of the bill we were confronted with in C-7. . . . we had amended Bill C-14 to include two important provisions. . . . the second provision: the establishment of a committee . . . designated to review the provisions of Bill C-14 and the state of palliative care in Canada.

Honourable senators, we cannot ignore, nor abrogate our responsibilities as parliamentarians, as legislators. We must review the three final reports of the expert panel released by the Council of Canadian Academies and feel assured, first of all, that we have met our obligations according to the provisions of Bill C-14.

The failure to allow Parliament to do its job and study the issue is yet another troubling symptom of the Liberal government’s negligence. We are asked to expand MAID without the benefit of the five-year review, and if we concur with the message today, honourable senators, and enact Bill C-7 as amended without this proper review, we will put communities at risk. For instance, the disabled community is one such group that is at risk. Disability rights groups have condemned the bill, arguing that it devalues the lives of people with disabilities who may be pressured, either directly or indirectly, through societal attitudes and a lack of support services, into ending their lives prematurely.

The loss of human life through suicide is also a tragic reality in Indigenous communities. We heard from so many witnesses who talked about their concern for their young, the youth in their communities and others who are faced with tremendous challenges, and are experiencing a much higher suicide rate than the Canadian population as a whole. For instance, suicide rates among Inuit are shockingly high at 60; 11 times the Canadian average. Indigenous leaders including Siksika Health Services CEO Tyler White; former Lieutenant Governor of New Brunswick, Graydon Nicholas; retired senator Nick Sibbeston; Indigenous health and suicide prevention advisers and elders wrote a letter to parliamentarians on Bill C-7 stating:

Bill C-7 goes against many of our cultural values, belief systems, and sacred teachings. The view that MAiD is a dignified end for the terminally ill or those living with disabilities should not be forced on our peoples.

Honourable senators, like Senator Batters and others, I am sure you still hear the echoes of these compelling testimonies that we heard throughout the process. One such testimony that had one of the most profound effects on me was from elder François Paulette and his words — I mean, it doesn’t do justice because imagine having five, seven minutes to somehow express that depth and breadth of what an elder of a nation that is thousands of years old, to put on record. So I use his words here just to remind you of what he said.

I’m going to describe to you our world view, and we have terminology to describe that. It’s Dene Ch’anié. Dene Ch’anié, literally translated, means the “path we walk” in the past, today and tomorrow. In this world view of the Dene, there is no description or word for “medical assistance in dying or suicide.”

You know, when he said we haven’t had the word suicide or the concept for very long in our community, he said it has been only about 300 years.

So I continue with his words:

Western and traditional Dene Indigenous knowledge are two different perspectives on how we see the world, on how we see each other, on how we see dying and how we see suicides.

I should have been asked right from the beginning. You should have had Indigenous people sitting down with government people and designing this legislation.

Our history is long. Our history is what guides us, but more so our language. Our language is descriptive. If there is not a word in our language, then it has never been part of our history.

So these words “suicide” and “medical assistance in dying,” if we concur with this message, I’m trying to envision what happens to the Dene people and other people of the Indigenous communities that have to grapple with this new reality, this regime that will be available to those who are eligible. We say two years for this to be prepared, but I’m trying to imagine, how do we make room? Do we force a system into an incredibly rich and ancient community and culture such as the Dene people? This concerns me gravely.

The Indigenous elders and others, and our senators in this chamber, have called upon us to respect the right to determine how health services are delivered in Indigenous communities, not to undo decades of work to combat the crisis of suicide in their communities by creating an environment that promotes suicide as a solution to mental illness.

Dr. Neil Hilliard, palliative care consultant and clinical associate professor at the Department of Medicine at the University of British Columbia, warns us that after Bill C-14 palliative care in British Columbia has worsened and access has been compromised, stating the following grave set of circumstances. He said the Fraser Health palliative care program:

was dissolved and decentralized to become a regional network. Individual hospices which had resisted providing MAiD gradually acquiesced to Fraser Health’s demand. The Langley Hospice Society executive director resigned. A new 15 bed hospice in Langley that had been scheduled to open in 2019 has still not been completed. Delta Hospice Society has been the last hold-out and now faces losing Irene Thomas Hospice when Fraser Health will not renew their contract when it expires February 25, 2021.

So I know that palliative care is essential and what concerns me about concurring with this message is that we didn’t do the five-year review, where we were supposed to review palliative care, so we’re not ready as a country to concur yet. I don’t know what that would mean, but it would require the government to think of a more reasonable solution than to enforce this timeline on us, when as a nation, we are not ready.

In a CBC article, Dr. Mark Sinyor, a psychiatrist and associate professor of psychiatry at the University of Toronto recently wrote:

As a scientist, I have to be open to the possibility that all of the claims advanced by MAID advocates are accurate. But enacting law, one which literally governs life or death decisions, based on a possibility isn’t good enough.

He continued:

In other areas of medicine, thoughtful scientists typically devote whole careers to meticulously studying benefits and harms of treatments before rolling them out.

In the case of MAID, the regime was designed for a narrow group of eligible Canadians whose death is naturally foreseeable. It is only five years old. We have not done the review to know what the way forward is before we expand it. Yet that is what we will be doing if we concur with this message.

I respect all those who are assessing and providing medical assistance in death, but based on the testimony that we heard, these MAID experts are still learning. They are in the process of learning more and improving, so potentially have, within two years, an expansion of MAID, which will require maybe even a different system, not adjustments to every aspect of the system we have in place. When we first created the new medical assistance in dying regime, it was for a very narrow group of people.

One of the experts who advised us was Dr. Raphael Cohen-Almagor, Chair in Politics at the University of Hull in the U.K. He has studied MAID in nine jurisdictions. He said we should be very careful in how we expand it, and that if we are going to expand MAID, we have to ensure that what was originally designed is directly transportable and applicable. And if we do not add the right kinds of safeguards and just simply expand without building the capacity and making all of the different exceptions that we need to, then we are putting people in harm’s way. His testimony was also very compelling and continues to resonate.

As we know, if we were to concur with this message, in just two years, MAID will be eligible for those suffering from mental illness as a sole underlying condition.

I would argue today, senators — we witnessed yesterday’s sitting where we had technical difficulties. Senator Bernard had to start a third time on her statement. We know that it takes so many individuals and so much time to just get through our Order Paper. I think there are 200 staff behind the scenes. We thank them for their incredible work.

I’m trying to envision a two-year window to potentially expand MAID to those suffering from mental illness as a sole underlying condition. In this COVID pandemic reality, where everything is delayed and there are gaps in all of the systems, two years is not enough time, senators.

The Canadian Mental Health Association, in a statement released after the government’s response, said:

. . . until the health care system adequately responds to the mental health needs of Canadians, assisted dying should not be an option — not now and not two years from now.

Canadian Mental Health Association CEO Margaret Eaton was clear: “We have to cure our ailing mental health system in Canada before we even begin to consider mental illness incurable.”

Dr. Lemmens illustrated the case clearly in his brief to the House of Commons:

Adequate home care or supported living, preferred by most people with disabilities and safer in a pandemic context, are not or are insufficiently available in several provinces.

The median wait time for access to specialized pain clinics was around 5.5 months in 2017-18, with some persons waiting up to four years, making it faster to obtain MAiD than to receive pain treatment.

I am reminded of my own father’s experience in palliative care. It was his birthday yesterday. He passed away in 2008; it would have been his eighty-ninth birthday. I recall the incredible care he had at a palliative care facility, how stoically he went into that good night, to his final breath, and how important it is as an option. Yet we haven’t done the review to understand what access there is. We know for a fact that, in many provinces, it is an issue.

Senator Martin, I’m afraid your time has expired. Do you wish to request five additional minutes?

I will not. Thank you, Your Honour.

Honourable senators, the House of Commons has come back with its response to the amendments adopted by the Senate with respect to certain elements of Bill C-7 on assistance in dying. The message we just received details the response, which received the majority of votes in the House of Commons last week. I remind senators that Bill C-7 is a government bill and not a Senate bill.

We know that the deadline for the most recent extension granted by the Quebec Superior Court to the federal government is March 26, which is next week. The court made it clear that this fourth extension is the last one it intends to grant so the government can pass its legislation. In the event that the bill is not passed by the March 26 deadline, the 2019 Quebec Superior Court decision in Truchon will come into full force and effect only in Quebec. This ruling struck down the Criminal Code requirement that death must be reasonably foreseeable for those requesting assistance in dying.

I think it is important to reiterate that the Senate adopted amendments as part of its responsibility as one of the federal Parliament’s two legislative chambers. As members of this legislative chamber, which was created under the Canadian Constitution, we senators have a responsibility to carefully examine the bills that are passed by the House of Commons. That is exactly what we did, since we have a duty to do so for every bill.

In order to accomplish that work, we had the support of many individuals, groups and organizations, to whom we are very grateful. The amendments made by the Senate were analyzed by the government, which chose to accept some, reject some and amend others. The majority of members in the House of Commons voted in favour of the government amendments.

In exercising our responsibility as legislators, we heard from many witnesses. The amendments that we adopted were a direct result of their testimony. What is unique about Bill C-7 is that it deals with end-of-life issues, issues affecting the end of our lives and the lives of those who are close to us, our family and friends.

We recognize that these are emotionally charged issues for us, for the witnesses who testified and for the people who have been contacting us by other means for the past several months. On top of that, we have been discussing these fundamental issues in the middle of a year-long pandemic, and this has exacerbated our stress, anxiety, pain and fear of death. The whole debate surrounding assistance in dying has become even more complex under the circumstances of the COVID-19 pandemic.

Some will think that the message we received goes too far, while others will think that this version of Bill C-7, as amended, does not go far enough.

Colleagues, autonomy is a fundamental human right for people who are suffering intolerably, whether or not they are living with a disability, and that right must be respected and protected. Preserving an individual’s right to autonomy also means respecting and protecting the right of people with disabilities to live with dignity and equality.

We heard from witnesses who said that the right to equality is not reflected in their daily lives, even though such discrimination is prohibited under the Constitution Act and the Canadian Charter. Subsection 15(2) of the Canadian Charter of Rights and Freedoms provides for the adoption of:

. . . any . . . program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of . . . mental or physical disability.

This constitutional right to a dignified life for a person with a disability is not incompatible with the right to have access to assistance in dying when the person believes that their suffering has become intolerable, as established in Truchon.

The message we received from the House of Commons doesn’t go as far as what a vast majority of the public clearly expressed, that is the possibility of clearly indicating in advance directives that they want to have access to assistance in dying before the decline of their cognitive abilities.

Several witnesses deplored the fact that the government chose not to begin the parliamentary review required by the legislation passed in 2016, which was to begin last June. The message that we just received provides for the creation of a joint committee to examine, among other things, the issue of advance directives, within 30 days of the bill receiving Royal Assent.

A parliamentary review included in legislation is binding on governments, no matter which one is in power. We had to remind the current government of that with an amendment to Bill C-7.

In my opinion, it is now our responsibility to help create the joint committee right away so that we can continue this crucial conversation about advance directives and other equally important issues.

Esteemed colleagues, we have a lot of work ahead of us, including work on the interaction between federal jurisdiction over criminal law and provincial jurisdiction in the areas of health and legal capacity to consent.

I don’t think it’s worthwhile to insist on the Senate’s amendments to the bill. Not accepting the message we received could result in an impasse and failure to meet the March 26 deadline. That would mean denying MAID to anyone living outside Quebec whose suffering is intolerable but whose death is not foreseeable.

The right to MAID, which is now recognized in Canada, is the result of numerous legal proceedings initiated by Canadians whose suffering was intolerable, with the explicit objective of asserting that right. Let’s also remember those who had submitted a formal request for MAID and were ultimately denied access because their cognitive abilities were deemed to be impaired to the point that they could not give valid consent.

It is with all these people in mind that I’ve reached the conclusion that it’s up to the Senate to confirm the recognition and protection of this right by accepting the message we have just received from the other place, even though the bill does not include all the elements we would have liked to see in it. I think it’s crucial that we continue to uphold our responsibility. Thank you.

Honourable senators, I support the government’s message, which is responsive to Senator Kutcher’s amendment on mental health, albeit with a longer 24-month phase-in period. The longer timeline continues the government’s cautious approach in responding to the Supreme Court’s landmark 2015 decision.

I’m also, of course, delighted to see Senator Jaffer’s proposal on expanded data collection in the message.

I’m comfortable with the government’s proposal to establish an independent expert committee to consider protocols and safeguards associated with mental health applications. I’m also glad to see that the committee will focus on finding a balance between constitutional rights and associated safeguards that the Supreme Court talked about in 2015.

This has been one of the central themes in our debates in the past weeks. In this respect, I’m pleased that this independent committee will be focusing on how and not whether.

The Supreme Court ruled in 2015 that the criminal law must permit some form of physician-assisted dying, and it held that the task of crafting an appropriate response was one for Parliament.

The court stated that there was a need for “a carefully-designed system imposing stringent limits” to protect vulnerable individuals, and that such complex regulatory regimes are better crafted by Parliament than the courts. That’s what we’ve been doing here.

It recognized Parliament’s difficult task of balancing the competing interests of those who would seek access to physician-assisted dying and of those who may be put at risk by its legalization.

Colleagues, we’ve been finding out just how difficult that task is.

Having spoken with psychiatrists who are also MAID assessors and who have been working for some time on the sort of protocols that would be necessary for mental health assessments, I was already content that a very strict and cautious approach would be taken in assessing mental health applicants for MAID, which, of course, would be in addition to the requirement to meet the test of a grievous and irremediable medical condition or a serious and incurable illness, disease or a disability and enduring physical or psychological suffering that is intolerable to them. Having these matters considered by an independent expert committee will add further due diligence in finding the right balance between rights and safeguards.

Colleagues, psychiatrists with expertise in medical ethics who have experience with MAID assessments have already suggested that as the profession eases into this, mental health assessments would lean toward long-term or even lifelong suffering alongside the other tough criteria in the MAID regime. This could result in a small number of applications being approved annually, and that is, perhaps, as it should be.

I also join with other senators here in applauding the government’s acceptance of the proposal for a joint parliamentary review of the Criminal Code as it relates to MAID, which will also consider mental illness together with the issue of mature minors, advance requests, the state of palliative care in Canada and protections for people with disabilities.

Colleagues, this parliamentary committee, like the independent expert committee, will focus, among other things, on the appropriate safeguards that should accompany access to MAID.

In this respect, the proposed committee is as responsive to concerns raised by representatives of the disability community as it is by advocates for the sort of advance requests proposed by Senator Wallin in her amendment, which is, unfortunately, absent from the message.

I commend Minister Lametti and his office and officials for their openness to hearing our best advice. I thank the bill’s sponsor again, Senator Petitclerc, and its critic, Senator Carignan, both of whom spoke forcefully on this legislation. As well, we saw Senator Jaffer’s superb job in chairing the Legal and Constitutional Affairs Committee’s careful review of the bill with the help of scores of witnesses representing every possible viewpoint.

I’m grateful to these senators and to all senators who have contributed to our debates, especially those that were on their own assessment of the issues as opposed to along party and group lines.

Congratulations and thanks as well to Senator Kutcher, whose job was not easy in advancing what he truly believed in, but he stayed the course. We have all to some extent been rewarded for that as would those people who would seek, from their mental health perspective, to make applications for MAID.

Honourable colleagues, we fulfilled our responsibilities to uphold the Constitution as well as considering the safeguards which are sometimes required alongside important rights. We’ve done this in a deliberate, planned and timetabled fashion, with organized debates that have made our discussions accessible to Canadians, just as some of you did in considering Bill C-14 in 2015 and cannabis reform in 2017 and 2018.

We need more of this planning and organization if we’re going to meet the expectations of Canadians. Participating in these organized debates has been a privilege, but this privilege could and should be a daily one and a daily practice, so let’s learn from this.

Colleagues, I support the message. It is reasonable and it reflects important amendments from the Senate, which will enhance the efforts in finding the right balance between important rights and necessary safeguards. Thank you.

Honourable senators, I also rise today with tremendous sadness to speak to the government’s message on Bill C-7.

Before I go into my comments, I also would like to thank, first and foremost, the Legal Committee. They did a tremendous job of bringing in 130-some witnesses, and I thank the committee for that. I thank the chair of the committee, Senator Jaffer. I was able to be in on a number of the meetings, and Senator Jaffer had a difficult job keeping everything going and under control. I commend her for the good and impartial job she did of running the committee.

I thank the rest of the committee — committee members that were not on the same side of the issue as I was. However, I thank them for the work they did at committee. That is the great thing about this Parliament — the democratic process that we have — in that we do not need to agree with each other, but I believe we need to respect each other and each other’s opinions.

I want to thank my own caucus colleagues: Senator Carignan, the critic of the bill — I thank him for his work. I certainly want to thank the deputy chair, Senator Batters, for the tremendous job she did on the committee, as well as Senator Boisvenu. Then, of course, I’d like to thank those of our colleagues that subbed in occasionally. Thank you, each and every one of you.

I also, as Senator Martin did, want to thank the witnesses — witnesses who put themselves out — vulnerable — who opened themselves up. It’s tremendous to see that. We thank you for that, and for those of you who wanted something else than what we’re getting, I can only say that we will continue to fight; we will continue to fight for you, the vulnerable.

I want to thank all senators here. I actually believe that this bill showed that this is not a partisan issue. Quite frankly, I was saddened by Senator Dean’s comments about thanking those who independently voted as opposed to who voted along caucus lines. I’m not sure to whom he was referring. If he would check the records, he would see that, in fact, my good friend Senator Carignan, who was the leader of this caucus before Senator Smith, who was a leader directly before me — both Senator Smith and Senator Carignan, who were my leaders, voted differently on many of the votes that we had on this legislation.

So I’m not sure who is partisan — when Conservatives decide to vote together along with some other people, that it becomes a partisan issue. That is sad, colleagues. This legislation — any legislation before us — should not pull us apart and create partisan shots. This is not the legislation to do that with.

So please, colleagues, I have respect for each of you who will vote for the message later on today. I may not agree with you; I may even be angry at you, but that also is my right. I still respect your right to vote the way you do, and I fully hope you will respect my right to vote against this legislation and do everything I can to improve upon something I believe is not good.

Colleagues, with that, let me go into my comments here.

While the most troubling amendment that we are considering today originated in this chamber, I do want to say a few words about the process. We have heard that this amendment process represents Parliament at its best, and it has been a respectful process to date, so we should accept this message from the government. I respectfully disagree with that comment.

At the outset, Parliament was forced to begin consideration of a radical assisted suicide expansion proposal before beginning the mandatory parliamentary review of our current system. The five-year review was enshrined in the original legislation because we recognized the gravity of this paradigm shift. We all understood that any further expansion would have to take place after a careful, deliberate review of our current system.

This was not an optional review; this was mandatory.

We were then told that we are in this urgent situation because of a lower court ruling and an impending deadline. That is, of course, not the case. We are in this situation because of the personal agenda of the Justice Minister and the Trudeau government. And now, here we are, about to pass a piece of legislation that goes so far beyond the Truchon decision that any suggestion that this was ever intended to be a response to that ruling is absurd.

The government made an unprecedented decision to not appeal the Truchon decision made by one individual to the Supreme Court of Canada. As a result, we have been blindly making sweeping policy decisions based upon what some speculate they might say.

With an overhaul of this magnitude, it would have served us well to have some clarity on how to legislate going forward.

The government has also gotten in its own way repeatedly on meeting each extended deadline while blaming everybody else. The bill was first introduced over a year ago, a week after the government had already asked the superior court for its first extension. Then, instead of introducing a bill to simply respond to the ruling, the government introduced something far more radical and expansive, which would clearly require more time and scrutiny by Parliament.

Further extensions were requested, one due to the onset of the COVID-19 pandemic, which clearly limited Parliament’s ability to review and move the bill forward. Then the Prime Minister prorogued Parliament to avoid scrutiny of the WE scandal, which caused another missed deadline.

After the Senate’s cooperation, including an extensive pre-study, the government insulted the parliamentary process by insisting that we “put our shoulders to the wheel” and rush the bill through to meet yet another extended deadline.

After this latest extension request, the government decided to pre-emptively shut down debate at the suggestion, of the Bloc Québécois, a party that does not believe the Senate should even exist, yet is happy to take the Senate’s suggestion on an issue they did not study in the House of Commons. The government, in collaboration with the Bloc, shut down debate on a brand-new, significant proposal that received no scrutiny in their chamber.

The House of Commons Justice Committee called no witnesses to weigh in on the topic of MAID for mental illness because it was not part of the bill. Then, after receiving the Senate’s message, the government allowed for mere days — mere hours — of consideration before invoking a closure motion, putting an immediate halt to further questions, further study and dissenting opinions, and charged forward anyway. This was clearly done because the pressure was ramping up.

Outrage from mental health advocates, psychiatrists, professional associations and Canadians across the country was resounding. Word was getting out. The government needed this to be over quickly. Rather than give the House of Commons an opportunity to consider something as profound as offering assisted suicide to Canadians suffering solely from a mental illness, they put an end to the discussion. The contempt for Parliament this government has demonstrated with their handling of this life-and-death bill should concern all Canadians.

On Monday, Senator Gold said that the government had demonstrated an openness to considering any constructive amendments that were consistent with the objectives of the bill. But, Senator Gold, we have been told that the objective of the bill was to respond to the Truchon decision. The accepted amendments clearly did not reflect that. So what are the objectives of this legislation?

The government leader and the sponsor had prepared speeches in opposition to amendments that simply preserved existing safeguards before hearing supporting arguments and then voted against them. Yet, on a pillar of this legislation — the crucial exclusion defended by the government for several months — all three government senators and the sponsor of this bill pivoted from their second reading position and suddenly had no opinion and abstained.

Are we to believe that this was a coincidence and that the government was truly open to any reasonable amendment? Are we to believe that the government carefully considered our message after they received it, assessed its compliance with the Truchon decision and then made their final decision? Of course not.

They knew which amendments they would accept and reject long before the vote in this chamber. That became abundantly clear after the abstentions on the sunset clause amendment — an exclusion that both the sponsor and the government leader passionately defended in their second reading speeches.

Let’s be clear. The objective from the outset has not been to respond to the Truchon decision. The objective has been to bring the legislation in alignment with Minister Lametti’s and the government’s personal views on this matter.

This is an amendment, colleagues, that I suspect was drafted in Minister Lametti’s office. If this is Parliament at its best, I would hate to see Parliament at its worst. What is most concerning is the policy Canadians will be left with as a result.

Honourable senators, like many across the country, I am heartbroken. For the life of me, I cannot understand why we would move at this rapid pace with a clear absence of evidence and such dire consequences.

There are a wide range of views on this matter. While I have tremendous difficulty understanding the rationale behind including mental illness in this regime, I truly, would like to believe this perspective is born out of compassion.

However, the key to this discussion is that our entire MAID system in Canada, as stipulated by the Supreme Court of Canada, is founded upon the notion that only those suffering from conditions that are grievous and irremediable can qualify for assisted suicide. As psychiatrist Dr. Sonu Gaind, the former president of the Canadian Psychiatric Association said recently, “. . . it remains currently impossible to predict whether mental illness is irremediable.” “On this question, there is no legitimate debate.”

The Centre for Addiction and Mental Health has also concluded there is simply not enough evidence available in the mental health field to ascertain whether a particular individual has an irremediable mental illness.

The Canadian Mental Health Association echoed the concerns of the psychiatry associations and stated that Canada must continue to exclude mental illness as a sole underlying cause for medical assistance in dying.

Margaret Eaton, the CEO of CMHA, in her plea to Parliament, stated:

We have to cure our ailing mental health system in Canada before we even begin to consider mental illness incurable.

After 15 months of studying global evidence, the Council of Canadian Academies came to the same conclusion, as did the expert advisory group on MAID. Both the American Psychiatric Association and the Royal Australian and New Zealand College of Psychiatrists have also concluded that there is no evidence to support providing MAID solely for mental illness.

Minister Lametti himself said at the House Justice Committee, and again at our own Legal Committee, that there is no consensus in the mental health and psychiatric community that could justify moving forward with extending MAID access to those suffering from mental illness at this time. Then just last week, Minister Lametti said in the House of Commons that there is a large consensus to include mental illness in this regime. I’m assuming he read the same report that Senator Kutcher read.

There has either been a sudden, drastic shift in the views of Canada’s psychiatric community coinciding with the government’s changing policy objective, or the minister is willfully misleading Parliament. The minister cannot answer any questions about his sudden change of heart, but rather suggested that because this will not be in effect tomorrow — that this would take place in two years — that somehow demonstrates an exercise of caution.

This amendment — and Senator Batters pointed this out clearly the other day again — does not give Parliament two years to study whether mental illness should be included. Rather, it makes the dangerous assumption that the evidence will somehow present itself and retroactively justify this leap. As psychiatrist Dr. Mark Sinyor stated:

In other areas of medicine, thoughtful scientists typically devote whole careers —

— Senator Martin said this earlier —

 — to meticulously studying benefits and harms of treatments before rolling them out. Here, that proven approach has inexplicably been replaced with hand-waving and moralizing.

The sunset clause is being sold as a way to allow time to develop standards or safeguards, but this notion has been discredited by the psychiatry community, as it ignores the only true safeguard that we have.

Dr. Gaind noted:

Those who advocate expanding access to MAID propose mitigating this reality with “safeguards.” This ignores the fact that irremediability is itself the primary safeguard built into the MAID framework, and bypassing it renders all other supposed “safeguards” meaningless.

He continued:

Because we cannot predict irremediability, there is 100 per cent certainty that MAID will be provided to some people who could recover — there is no safeguard against that.

Honourable senators, there is no comfort to be gained from a 24-month delay, as the consequences have already begun. We have all received emails from psychiatrists telling us of their patients who have indicated their intention to stop treatment because MAID access is imminent; patients who were making slow, yet steady progress.

The sunset clause is nothing more than an attempt to soften the blow of horribly premature and ill-conceived policy. The question I have is: Why now? There is not a single person in this chamber who can stand up and tell us that we have any degree of professional consensus. If some major swing happens in two years, where we suddenly find that we have a kind of general consensus in the field of psychiatry, as well as some insight as to a shift in the views of Canadians, then there is nothing that would prevent the government of the day from considering this expansion.

But it cannot be argued that we are anywhere close to that today. With the lack of evidence, the lack of consensus, and the enormous risk this amendment takes, this is objectively a terrible policy decision.

So again I ask: Why now? What could possibly be the rationale? Constitutionality? The judge in the Truchon decision made no such assertion. We have no idea what the Supreme Court of Canada would say, because the government’s failure to appeal deprived Parliament of that insight.

We had legal experts testifying on both sides of this argument at committee, some who strongly maintained that the exclusion of mental illness was necessary, and entirely constitutional as it would be saved by section 1 of the Charter. We cannot even begin to suggest we have a legal consensus that excluding mental illness would be unconstitutional.

Senator Gold made an impassioned second reading speech, with a well-reasoned case for keeping the mental illness exclusion intact, making strong arguments as to the constitutionality of such an exclusion. And now that the policy objective has changed, so has the accompanying constitutional analysis.

Colleagues, I sincerely hope we are not placing too much importance on fleeting constitutional alarms, especially given that we have no direction from the Supreme Court of Canada on this point.

And regardless, as Senator MacDonald rightly pointed out in this chamber in his third reading speech, constitutional arguments are not relevant to our decision-making process. He said:

Senators are not litigators. The Senate is not a court of law. We do not adjudicate; we legislate. We can have a constitutional opinion on anything we like, but we shouldn’t presume to declare how the court will probably rule. This work is best left — indeed, must be left — to the court itself.

So please, colleagues, let us make the right policy decision with the information and evidence that is available, as the wrong decision can and will have terrible consequences.

When it comes to mental illness, we need to offer hope to those who have lost all hope. If that is not our first priority, we have failed. We need to focus on investments in research, in improved access to mental health treatment, in suicide prevention. Instead, this amendment offers assisted suicide to those who may be in the darkest days of their lives and who could very well come out of it.

Many of us have seen the viral video that was circulated since the Senate first passed the sunset clause amendment entitled “Tell Me To Stay,” in which a young woman who has attempted suicide seven times makes a plea with Parliament not to allow doctors to end the lives of people like her. As she says, “I’m the future version of myself who survived to tell you this.” She said that some people living with mental illness will thank you for making this possible, and that is the problem. She stated:

Had someone been willing to assist in my suicide during one of those lows, I know the life I lived would not have happened.

She said that while she was fighting those internal battles. She did not need someone willing to assist in her death; she needed someone to be her advocate and to fight for her.

Mental illness, colleagues, affects people of all ages, education, income level and cultures. We need to remind ourselves that the lives of people at stake here are our neighbours, our friends and our family members.

I recently heard from a person who has suffered from depression and anxiety for decades and has had varying success with treatments, yet has been doing well for quite some time. She said she was baffled and heartbroken that we would even be considering this at a time when we are finally, colleagues, on the cusp of a major societal shift — a shift which normalizes therapy, reduces stigma, and prioritizes access to mental health supports. As someone who has been silent and ashamed of her illness for decades, she can now feel the transformation happening. We are almost there, she noted, and the impact of this change on people like her could be profound. And now, before we get there, we are taking a giant leap backwards; a leap that could end lives like hers, in the name of autonomy.

We have all received correspondence from Canadians who have suffered from mental illness, who state unreservedly that had assisted suicide been available to them at their lowest points, they would no longer be here today. If we would have offered them a surefire way to end their suffering, they would not have bothered attempting suicide themselves with less certain means. Often, sadly, these unsuccessful suicide attempts are the first step toward treatment, toward healing and toward building a future.

We can look to Malcolm Gladwell’s research on coupling to understand this better. The work of Gladwell and others on this topic confirm, quite conclusively, that it is not simply the suicidal ideation of an individual with mental illness that results in their death. Rather, it is the suicidal ideation coupled with a particular circumstance.

For example, in 1963, poet Sylvia Plath, who had long suffered from depression, turned on the gas on her kitchen stove in England, placed her head inside the oven and took her own life. In the years after the First World War, many British homes began to use “town gas” to power their stoves and water heaters. This gas contained a variety of different compounds, including the odourless and deadly carbon monoxide. This gave individuals in Britain a simple means of dying by suicide in their own homes, and they used it. In the same year that Sylvia Plath ended her life, 5,588 people in England and Wales also died by suicide. Of those, 2,469 — or 44.2% — did so in the exact same manner as Plath. No other method came close.

In that same period, the British gas industry underwent a transformation. Town gas was increasingly expensive and dirty, so they converted to natural gas. By 1977, all town gas appliances were switched over to natural gas. The drop in gas suicides was significant: from 2,469 in 1962 to 0 in 1977. The assumption that many people make is that those who are so set on wanting to end their lives will simply switch to another method, that blocking one option will not make much difference. The reality is, after town gas was phased out, the overall suicide rate in England plummeted.

Similarly, Gladwell notes the Golden Gate Bridge in San Francisco has been the site of more than 1,500 suicides since it opened in 1937. No other place in the world has seen as many people take their lives in this short a period. When the City of San Francisco was deliberating whether to install a net or barrier to prevent people from jumping off the bridge, many believed this to be a wasted effort. After all, those who had decided to end their lives would surely find another point to jump from, or another method altogether. However, this proved not to be the case. Their decision to die by suicide was coupled to that particular bridge.

Psychologist Richard Seiden followed up with the 515 people who tried to jump between 1937 and 1971 but who had been unexpectedly restrained. Just 25 of those 515 people persisted in attempting suicide some other way. Overwhelmingly, the people who wanted to jump off the Golden Gate Bridge at a given moment wanted to jump off the Golden Gate Bridge only at that given moment.

In one national survey, three quarters of Americans predicted that when a barrier is finally put up on the Golden Gate Bridge, most of those who wanted to take their life on the bridge would simply take their life in some other way. But again, that assumption was wrong. Gladwell and others found that suicide is a behaviour coupled to a particular context. He concluded:

It’s the act of depressed people at a particular moment of extreme vulnerability, and in combination with a particular, readily available lethal means.

Colleagues, with this new proposal, we will be offering patients with mental illness the most readily available lethal means. We will be offering them a certain, fail-safe way to end their suffering and their lives, which, as the data demonstrate, will make it far more likely for them to go through with it. In passing this, we are not just providing the means, but we are sending a dangerous message — the message being: “We agree with you that in your darkest moments, your life must truly not be worth living, and we will even help you end it.”

Honourable senators, we do not have to do this. We do not have to move forward with this amendment just because it originated in this house. The outpouring of concern from those who have suffered from mental illness and the psychiatric community has been profound. There are plenty of reasons for this chamber to have a change of heart and to pump the brakes.

If there was ever a time to exercise sober second thought, that time is now. It is not often that we can truly say that, with this vote, we have the opportunity to save lives and to prevent the unnecessary, premature deaths of the vulnerable and to offer hope to those who have lost it, but today, we do. Please, colleagues, let’s not let the weight of today’s vote be lost on us.

If you are adamant that in 24 months we will have all the answers and we will have enough of a professional consensus to move forward, then, by all means, it is your right to work towards that. New legislation will be required anyway to enact the new proposed safeguards and parameters. But there is absolutely no reason and no justification for proceeding with this now.

Why not permit the advisory panel to have true independence in their deliberations? If they determine that in two years’ time it is safe to proceed with offering assisted suicide to those suffering with mental illness, Parliament can act accordingly. But why would we limit their ability to study this matter and presuppose their conclusions when we know the psychiatry community remains so divided? The risk is simply too great.

As we bring this discussion to a close, I want to leave you with some powerful insights from Canadian psychiatrist Dr. John Maher. He wrote this letter last Friday, the day after the vote in the House of Commons, a letter that even caught the attention of The Globe and Mail today. I think it is important that his words be considered in their entirety. He writes:

Several years ago I was on the promenade at Niagara Falls with my 3 young children. As we stood at the railing some 20 feet from the roaring cascade, with a cooling mist on our hot summer faces, a young man, maybe 18 years old, climbed over the low railing and walked out to a small rock promontory that jutted out immediately over the 150-foot drop onto the rocks and churning waters. The happy crowd of tourists seemed to magically come to a standstill as everyone looked at the young man and knew that a life stood in the literal balance. The young man looked down and never back. His clothing was dirty and he seemed like he was talking to himself. An existential conversation, or hearing voices, or both?

I am a father. I turned my children away from what I feared was about to happen. They, all under 9, asked, “didn’t that man know it was dangerous to get that close to the edge… it was wet and he might slip”. They were scared for him. So was I.

I am a psychiatrist. I wondered, what could I do? What should I do? He couldn’t hear anyone over the thunder of the water. I weighed trying to grab him and pull him back, but knew I could go over with him. Would I risk dying to save him? What of my children that I was shielding and held close?

The world stood still. Seven very long minutes. No one watching moved, and the dead still crowd had grown to hundreds watching from the safety of the low fence. A fence that any one of us at any moment could easily step over.

I knew the suicide numbers for Canada. Of the 100% of people who attempt suicide, 23% try again, but only 7% complete suicide. That 7% is 4000 human beings each year. I knew that most suicidal thinking is ambivalent and transient and that people can be helped. Would this young man, with a whole life ahead of him, choose help?

I am also an ethicist. Last night I watched the televised proceedings from the House of Commons as the Liberal government shut down debate on the MAID bill. As I listened to the combined pleas of the Conservatives, NDP, and Green Party (right joined with left in their common humanity) to not extend Medical Assistance in Dying to people with mental illness I thought of Niagara Falls.

The image that came to mind was the young man on the edge of life with two groups standing to either side of him. On one side, stood a Liberal MP and a Bloc Quebecois MP saying to the young man that they respect his autonomous right to choose death, and that if he has been suffering a lot and has a mental illness, that is good enough for them, and they will get a doctor who can push him over the edge. On the other side stood a Conservative MP, an NDP MP, and a Green MP. They told the young man that he mattered, that despite what he might be feeling right now, there was hope. They said they would try to help. They would try to get him some money so he wasn’t living in poverty. They would try to get mental health care for him, even though it was hard to find and there are long wait lists. They would try to get people to stop making fun of him because of his mental illness. And in that moment, they held the doctor back, who was all too ready to give a hefty push in the name of autonomy.

What happened that day? He turned back from the edge in a daze, in his own world. He climbed the railing. Strangers spontaneously hugged him. Some cried. He was genuinely surprised by the attention and seemed pulled into the sudden awareness that he was not alone. Several people walked away with him, fearing leaving him alone when he was fighting despair. I want to believe that he got help and is living a good life. He was a stranger, but his life mattered. Which side of him would you stand on?

Colleagues, which side will we stand on? Thank you.

Senator Plett, there are a couple of senators who would like to ask questions. Would you take some questions?

Your Honour, I think I will let my speech stand for itself, and I’m ready for the question to be called on this bill. Thank you.

Are senators ready for the question?

Any senator opposed to the motion will please say “no.”

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.”

In my opinion, the “yeas” have it.

Do we have agreement on a bell?

One hour.

The vote will take place at 5:32. Call in the senators.

Honourable senators, the question is as follows: It was moved by the Honourable Senator Gold, seconded by the Honourable Senator Boehm, that in relation to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying) the Senate — may I dispense?

That, in relation to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), the Senate:

(a)do not insist on its amendments 1(a)(i), 1(a)(iii), 1(b) and 1(c), with which the House of Commons has disagreed;

(b)agree to the amendments made by the House of Commons to Senate amendment 2;

(c)agree to the amendment made by the House of Commons in consequence of Senate amendments 1(a)(ii) and 3; and

(d)agree to the amendments made by the House of Commons to Senate amendment 3; and

That a message be sent to the House of Commons to acquaint that house accordingly.

Honourable senators, the reason for my formal abstention is, despite the fact that this bill offers some improvements, it is fundamentally flawed and discriminatory in that it rejects the Senate’s clear call to allow for advance requests for all.

Honourable senators, I notice there are a number of senators who want to explain their abstentions. I would like to point out that the time for explaining why you abstain is during debate on the matter. This time, and this time alone, I will allow for very brief interventions.

Honourable senators, I’m abstaining because I believe that rights come with responsibilities and that it is irresponsible of the government, particularly at this moment and particularly in light of the shortcomings, inequities and discrimination in treatment and health service systems, to proceed with this legislation without first ensuring those supports are in place. Thank you.

Honourable senators, I ask that the interventions at this stage be brief. Otherwise they should take place during debate.

I’m inclined to defer to the will of the elected chamber, but in light of the cruel lack of psychiatric care and the absence of a consensus in the medical community, I still believe we should have been more cautious.