Honourable Senators, I know it is late in the evening and many of the points I plan on raising in my speech have already been said. However, I still wish to add my voice to this extremely complex, sensitive and difficult debate that weighs heavily on all of us. As Parliamentarians, we know that the final words imprinted on this piece of legislation will literally determine who has the right to bring their life to an end, when, by whom and how it will be done.

The previous MAiD Bill (C-14) was one of the most difficult pieces of legislation for me personally, and our Chamber to deal with, as it was enacting an assisted dying bill for the first time in our nation’s history and one that many other countries had not yet explored. We had robust debate at each stage, much longer than now, and our Chamber was extremely divided throughout the process.

Even then, there was not enough time to make such a monumental decision. As a Chamber we sought opinions, research and knowledge from experts, patients, families, indigenous leaders, nurses and caregivers. At the end of the day we came to a final vote on C-14 as the Supreme Court had imposed a deadline to pass federal legislation to allow Medical Assisted Dying in Canada.

From the onset, I was opposed to the bill and had every intention of voting against it to the very end, but there was a ruling in the Alberta Court of Appeal at that time that was opening up the doors alarmingly wide for MAiD, so I was advised that passing federal legislation with safeguards we had managed to include through amendments and the inclusion of the “foreseeable death” provision was better than not having a federal regime in place.

I was advised that provinces have the responsibility of administering MAiD and they would be able to tighten the Federal regime’s framework by adding further safeguards, as needed. However, in my province of British Columbia, the opposite happened with the election of a new government. Rather than a strengthening and tightening of the MAiD regime, there have been several concerning developments. In fact, last July, Alan Nichols from Chilliwack, B.C. who struggled with depression with no signs of imminent foreseeable death was given approval for MAiD by health professionals despite pleas from his family who believed he did not fit the government criteria for MAiD eligibility based on Bill C-14. Therefore, I am on heightened alert as we debate C-7.

Honourable Senators, what I wish to raise today is the deep concern I feel and share with many constituents across Canada who have contacted my office. Should Bill C-7 pass unamended, it will bring unintended consequences on vulnerable individuals in our country during their time of deepest need and care.

In November, as ex-officio member on the Legal and Constitutional Affairs Committee, I participated in the pre-study of Bill C-7. We sat for 5 days straight and heard from a wide range of witnesses who shared their personal stories, expertise and recommendations to improve Bill C-7. The information and differing opinions were overwhelming and made it absolutely clear to me that there are significant issues with this Bill, gaps that need to be closed and that we cannot rush this legislation. There is no reversal of death. The end of life means the end. Full stop.

Unlike C-14, bill C-7 expands the eligibility for medically assisted dying to those who are not facing near death but are living with a disability. However, it does not include those living with mental health issues. This opens up a consequential debate on whether this legislation implies that some lives are not worth living and covers up a deeper societal issue by providing an end of life solution to a greater social problem of neglect rather than fixing the gaps in our health care system across Canada.

In the words of Assistant Professor Jonas-Sebastien Beaudry who so clearly articulated in Policy Options magazine, is that it is not a matter of legal or ethical issue on whether people cannot judge for themselves when they feel their lives are not worth living, the issue is rather a political and social one because “Bill C-7 opens a normative space in which various social actors, including medical experts and the state itself, can discuss the topic of ‘lives not worth living.’

Nicolas M. Rouleau, constitutional lawyer, represented Inclusion Canada and the Council of Canadians with Disabilities in the Truchon matter. He argued that extending MAiD to persons only with disabilities and not for other Canadians who are also not near the end of their life is discriminatory. He said “Canadians with disabilities are being singled out and told that only they have this right. We are accepting the stereotype that their lives may be worse than those of other people.” The truth that the disabled community is already vulnerable was affirmed to me by Minister Carla Qualtrough who bluntly stated that “the harsh reality is that many Canadians with disabilities are not living with dignity, in the sense that they are not properly supported, face barriers to inclusion, and regularly experience discrimination.”

Another concern I have with the current monitoring and reporting system is that it is not properly constructed and relies on self-reporting by MAiD providers, leaving families with no way to penetrate doctor-patient privilege if they suspect wrong-doing. Our colleagues in the House of Commons raised the need for a robust and standardized federal monitoring and data collection on MAID, to receive reliable national data sets, to understand who is accessing MAiD and why.

Dr. Leonie Herx added that there is no oversight system, separate from what is being done by Health Canada, where cases of MAiD administration and compliance issues can be reviewed at a provincial level along with more thorough reporting from provinces. Currently, only Quebec and Ontario have such an oversight system in place.

Not only are we lacking clear and specific data, but there is no proper standard in the delivery of MAID nor enough training for physicians and maid providers. Dr. Mona Gupta, in response to a question stated that the “clinical community has been crying out for more training in MAID, end-of-life care and a variety of domains…”.

Without clear data collection, parliamentary review of Bill C-14, and set standards of MAiD training and delivery across the country, I am deeply concerned for the proposed changes in Bill C-7, which reduce existing safeguards for those who are near the end of life, and propose weak safeguards for persons whose natural death is not reasonably foreseeable but meet the other criteria for MAiD. As was previously mentioned, Bill C-7 goes beyond the Truchon ruling.

While I heard that the 10-day reflection between the day the patient signed the written request and the day MAID is provided has not served the purpose of its original intent and only prolonged pain for patients set to receive MAID. However, according to Health Canada’s report on MAID in 2019, 263 people withdrew their requests for MAID, because they had changed their minds. Of those people who changed their minds about MAID, one in five withdrew their request immediately before MAID was to be carried out.

The current law allows for the reflection period to be reduced if death or loss of capacity to provide informed consent is imminent. As such, the removal of the 10-day period is dangerous in cases of patients who sign a request in the morning and can receive MAID the same day without reflection.

What unnerves me greatly is the wording of the “greater certainty” clause with regards to Advance Consent for MAID, which reads that “involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance and can receive MAID”. Currently, if any patient resists at any time, practitioners would not be allowed to provide MAID. How can we, as legislators, be asked to pass such a provision of what constitutes a real sign of involuntary resistance.

Dr. Trudo Lemmens, Professor and Scholl Chair in Health Law and Policy, Faculty of Law has done extensive work on the study of international and Canadian MAID practices and law, and in his testimony to the Legal committee, he said that this clause “violates the Convention on the Rights of Persons with Disabilities, which says loss of capacity doesn’t mean you lose your rights, including your potential right to express, in one way or another, your resistance to something, or your change of mind”.

Dr. Harvey Max Chochinov, Distinguished Professor of the University of Manitoba shared data with the committee that the desire for death is fluctuant. One study done in Belgium by a psychiatrist (Thienpont) looked at 100 patients requesting euthanasia on the grounds of mental conditions alone. Of those 100 patients, 38 patients eventually withdrew their requests, 11 of them after they had been approved. In Oregon, 20% to 40% of the people who request lethal medications in fact never take that medication. Dr. Chochinov argued that according to data the idea that someone who makes up their mind today and holds steadfast to it, is simply not true.

When Minister Patty Hajdu came to testify to the Senate committee, I asked her about ‘stop mechanisms’ in place once MAID is triggered. She didn’t answer with any explanation nor assurances of ‘stop’ mechanisms in place. I have heard from health professionals, though, that until the day of final consent, there are no mandatory checks about whether the patient has changed his or her mind. According to an article written by Dr. Leonie Herx, Dr. Margaret Cottle and Dr. John Scott in the World Medical Journal, there is no direct oversight or mechanism to stop the administration of MAID in real-time, even if red flags are raised. They state that “monitoring requirements include only basic demographic information and are only reviewed in retrospect. This means that there is no mechanism that halts the MAiD process where someone can pause and review whether an individual has received adequate care first before continuing with MAID. Only through retrospective review of the reports - after a person is already passed - will we see that a certain percentage of people did not have access to palliative care, for example.

Without adequate collection of information, how can MAID be delivered accurately and within compliance of all the regulations? Professor Jaro Kotalik identified in his article in the Canadian Journal of Bioethics that it took 2 years and 4 months after the delivery of MAID had begun for Federal monitoring regulations by the Federal Ministry of Health to take effect. One of the most concerning facts he presented is that “by the end of December 2019, over 13,000 Canadians died with medical assistance. For almost 10,000 of those MAID cases, we have no publicly accessible evidence that the eligibility criteria and safeguards prescribed by law were respected.” Our provinces, territories and health institutions must work together to share information so that more information on who is receiving MAID, as well as any known vulnerabilities in socioeconomic status, is collected and analyzed.

And what about palliative care? Many honourable Senators have spoken about the need for better and more accessible palliative care across the country. When I stood to make the difficult vote on Bill C-14, we were told by the government that palliative care would be reviewed. However, due to COVID, this review has not happened, and yet we are being asked to vote on a bill that expands eligibility criteria to MAID.

Palliative care must be part of the spectrum of care and must be offered and made available before initiating conversations about MAID (NOT as an option along with MAiD). I believe that MAiD must be at the end of life, after all other services and support have been properly offered and made available.

Finally, Bill C-7 in its current form does not adequately protect conscience rights against forcing a physician to refer a patient for assisted suicide when it is against their conscience to do so. We have heard that Bill C-14 outlines conscience rights however, the MAID regime is still relatively new and forcing an individual to refer a person for MAID has not been tested in the Supreme Court of Canada. Dr. Leonie Herx stated that the expectation of physician participation in MAID in Canada far exceeds that of any other permissive jurisdiction in the world. We heard from doctors that they wish to see Bill C-7 strengthened and clarify the conscience clause in Bill C-14. Dr. Ewan Goligher, Assistant Professor of Medicine, University of Toronto, stated that even a referral makes a physician morally culpable.

In 2018, Dr. Diane Kelsall highlighted that The Ontario Ministry of Health established a care coordination service where patients and caregivers can request directly to be connected to a doctor or nurse practitioner who provides MAID. However, the provincial college still required physicians to provide a direct referral. This is also the same in Nova Scotia, where physicians and nurse practitioners are required to make an effective referral for MAID. At committee, several witnesses recommended to us that, further clarification in the criminal code would provide better clarity on whether or not referrals would be participating in the act of providing MAID.

Professor Trudo Lemmens stated that Bill C-7 “undermines the balance the current MAiD law tries to achieve between the interest of some in controlling the manner and timing of their death; and the protection of people when they are vulnerable, the reaffirmation of our equal valuing of the lives of people who are elderly, ill or disabled, and suicide prevention. The bill prioritizes the right to liberty of some over the duty of the state to protect life, and this in a discriminatory way.”

I believe we should put more focus on doing everything we can to help care for our patients and ensure that the most vulnerable Canadians have access to quality care. Everyone should have equal rights without being stigmatized.

On principle, I cannot support Bill C-7 in its current form. Not because I am against the right to autonomy and choice and dying with dignity, but because the removal of important safeguards without knowing with certainty that we have the necessary supports in place to support life, including access to good palliative care, will put some of the most vulnerable people at risk.

I do not believe the safeguards that are in C-7 adequately protect patients, physicians and those most vulnerable in our communities who may find themselves with no other choice but death by MAiD. Based on the compelling witnesses at committee for the prestudy, being on the forefront and having one of the most liberal MAID regimes, should C-7 be adopted unamended, is not something that I wish for our nation.

Honourable Senators, my hope and my wish for 2021, as we celebrate Hannukah or Advent and soon Christmas, is for the Senate to continue what we do best. As a Chamber of sober second thought, to fiercely debate the bill at each stage, further study and analyze it, and when we reach the end, for each of us to make a decision in the best interest of Canadians that we have the honour to represent and the duty to protect.