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 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 rise today to speak to this amendment. Let me begin by saying that I fully support conscience rights of health care providers in respect of not being compelled to deliver MAID. However, this amendment goes well beyond that. It also does not recognize the bi‑directionality in which conscience rights must be discharged. Conscience rights are not a one-way street.

Therefore I respectfully oppose this amendment. In my opinion, it will have the effect of cancelling the gains made over the last few years regarding delivery and access to MAID for those who meet eligibility criteria for MAID. It attacks the fundamental aspects of Canadian health care systems, and it fractures the important roles played by national, provincial and territorial health profession regulators.

The clinicians and the institutions that they work in, and those who regulate what they do, should not be treated as criminals. They are working diligently to meet the considered requests of competent people to seek an end to intolerable suffering.

Every practising clinician plies their professional trade within a complex and complementary framework of oversight, privilege and regulation. This amendment ignores that complex set of responsibilities and criminalizes multiple aspects of how MAID is, and should be, provided and regulated.

With its use of the phrase “compels another person to provide or facilitate,” it has the impact of destroying the entire and delicate balance of intersecting responsibilities involving clinicians, regulators, health care institutions and provincial-territorial authorities.

Let me say this more bluntly. This amendment will have the impact of tearing apart the structures that have been created over decades to provide and support clinical care, and protect the rights of patients and providers alike.

This tearing asunder includes the provincial regulatory authorities, specifically the colleges of physicians and surgeons, and the colleges of nurses across this country. It would criminalize boards of health authorities, medical advisory committees and all health care institutions that have MAID policies and bylaws that require informing patients, transferring care, or discharging other professional or clinical duties that might be characterized as facilitating care.

Let us be very clear. There is no coercion being applied on clinicians nor on any institution to provide MAID should they choose not to do so. For example, the Quebec government has put into law the clarification of duties of physicians and executive directors of health care institutions with respect to ensuring a patient who makes a request for MAID is connected to a physician willing to deal with the request. This amendment would force federal intrusion into Quebec’s provincial legislative authority. This makes no sense.

Colleges of physicians and surgeons across the country have also put in place policies that compel physicians to make an effective referral or effective transfer of care if they conscientiously object to a request for MAID. These standards do not require clinicians to provide MAID. They are there to ensure that clinicians do not abandon their patients just because they disagree with the patient’s decision.

These oversight bodies, not the Criminal Code, are tasked to oversee physician responsibilities for patients. Are the decision makers within these bodies now to be made criminals for trying to protect vulnerable patients from being denied access to a requested and legal clinical intervention?

Colleagues, we need to be aware of the complex intricacies and shared responsibilities that clinicians, regulators, health care institutions and provincial-territorial governments have to support the delivery of care, and to ensure that it is provided in the best interests of the patient — not in the service of a particular ideology, regardless if that ideology is personally or institutionally held. The structures are the same whether the patient is requesting breast cancer surgery, is experiencing a heart attack or is requesting MAID.

Honourable senators, this amendment has the ability to destroy the balance and create a legal quagmire by criminalizing many aspects of this network of intersecting obligations and responsibilities. We can either vote to tear down the Canadian health care system that offers direction and oversight for the provision of MAID, or we can vote to keep it strong and responsive to patients’ legitimate and constitutionally grounded rights, not asking clinicians to provide MAID if they do not wish to do so, and providing the safeguards needed to deliver compassionate and supportive MAID-related care.

I urge you to join with me and vote no to this amendment. Thank you. Meegwetch.

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.