Criminal Code

Motion in Amendment Adopted

February 11, 2021


Hon. Scott Tannas
[20:28]

Therefore, honourable senators, in amendment, I move:

That Bill C-7, as amended, be not now read a third time, but that it be further amended on page 9 by adding the following after line 30:

“Review

5 (1) A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application must be undertaken by a committee of both Houses of Parliament established for that purpose and consisting of

(a) 5 members who are members of the Senate; and

(b) 11 members who are members of the House of Commons.

(2) The committee is to be co-chaired by two of its members, one who is a member of the Senate and one who is a member of the House of Commons.

(3) The committee is to be established

(a) within 30 days after the day on which this Act receives royal assent; and

(b) by the end of the thirtieth sitting day of each new session of Parliament if the committee has not submitted its report in accordance with subsection (4).

(4) The committee must submit a report of its review — including a statement of any recommended changes — to both Houses of Parliament no later than

(a) September 15, 2021, if no prorogation or dissolution of Parliament occurs between the day on which this Act receives royal assent and that date, or

(b) 180 days after the day on which the committee is established, in any other case.”.

The Hon. the Speaker pro tempore
[20:30]

Senator Tannas, will you entertain a question?

Senator Tannas
[20:30]

Sure.

Hon. Lucie Moncion
[20:30]

Senator Tannas, I just wanted to know if 180 days is long enough for a review of the magnitude that you are looking for.

Senator Tannas
[20:30]

I did give this some thought. Six months seems to me to be sufficient time to do it if there is a focus, and I would expect there to be a focus on it. However, as we said, if there is a consensus around a longer period of time, we would welcome a subamendment.

The Hon. the Speaker pro tempore
[20:31]

Senator Martin, do you have a question?

Hon. Yonah Martin (Deputy Leader of the Opposition)
[20:31]

Yes, thank you. Senator Tannas, we haven’t done the first five-year review, and I agree with you that we should absolutely do the review. What confidence do you have that we would be able to achieve this?

Senator Tannas
[20:31]

You’re quite right. There is nothing we can do about either. We could put this in Bill C-7, it could be ignored, and there are, as I understand it, no consequences for it. The problem with Bill C-14 is it’s water under the bridge, there are no consequences for it, and it’s sufficiently vague that there is nothing we can do about it. The point here with being specific about both houses is that if it isn’t happening, we can actually give an instruction. We can make noise because we’re one of the partners that are specified in the bill. We don’t have that in Bill C-14; we didn’t have that in Bill C-14. But if we can pass this amendment, we will have it in Bill C-7.

The Hon. the Speaker pro tempore
[20:32]

Are there any other questions? Senator Harder, via videoconference.

Hon. Peter Harder
[20:32]

Thank you. Senator Tannas, I’m quite sympathetic to the idea of getting a study done. Have you given any thought to just our chamber acting on its own volition, hearing and conducting a review without needing to wait on the other side or, indeed, the government on the other side, to give us guidance? Why don’t we just do it ourselves?

Senator Tannas
[20:32]

I think if it’s at all possible, we should exhaust all possible ways in which to involve both houses of Parliament. There was terrific work done on the prior committee, and I worry that by doing it ourselves we will not have any leverage with whatever government to see the impacts of the recommendations put forward. I think it’s far stronger, far better, and I think everybody agrees, from what I have heard from Minister Lametti and from Senator Gold, that it’s desirable, for many reasons, to have the joint committee.

That said, maybe that’s what we have to do, if all of this fails somewhere down the road.

Hon. Ratna Omidvar
[20:33]

Senator Tannas, will you take a question, please?

Senator Tannas
[20:34]

Yes.

Senator Omidvar
[20:34]

I too am sympathetic to your amendment. It makes good, common sense, and it lays out a path. My question is whether you can cite a precedent for such a joint committee on a particular bill. If so, were the results positive in the sense that they produced insights that were useful to Parliament?

Senator Tannas
[20:34]

The one that I know best in my own experience was the joint parliamentary committee on this very subject in 2016. There was good work done there under charged, political circumstances in addition to all of the moral questions. The work that got done there was appreciated by all parliamentarians and listened to by the government. Thank you.

The Hon. the Speaker pro tempore
[20:35]

On debate, Senator Gold.

Hon. Marc Gold (Government Representative in the Senate)
[20:35]

Thank you, Your Honour. I rise today to speak briefly to the amendment put forward by our colleague directing that a review of the MAID regime be undertaken by a joint parliamentary committee. I want to start by being clear that I fully support the notion that a parliamentary review is absolutely essential to examine and better understand the complicated facets of MAID in some shape or form.

But for reasons that I will set out, and which I have shared with Senator Tannas, I cannot support this amendment. I would like to explain why.

As I have said repeatedly, the government is and remains committed to ensure that the full parliamentary review mandated by Bill C-14, which implemented the MAID regime, is fulfilled. However, the legal and parliamentary environment has changed dramatically and drastically since then. We are now grappling with the uncertain realities of a minority Parliament, which increases the logistical challenges of constituting a joint committee with the other place. The government was also forced to address many elements of the Truchon decision, which, rightfully, required urgency and attention.

I know the frustrations that many of my colleagues have expressed around the timeliness of moving forward with the parliamentary review, and I share that frustration. That is why, as Government Representative in the Senate, I circulated some months ago a proposal with all groups to constitute a special Senate committee on the legislative review of Bill C-14 so that this chamber could apply its institutional stability and wisdom in this complex public policy area — a committee, by the way, contemplated explicitly in section 10(1) of Bill C-14.

The Senate has undertaken difficult and controversial studies over the years. It has produced comprehensive reports on poverty, mental health, aging and foreign affairs. These reports have influenced government policies and priorities in several areas. They led to the creation of the Mental Health Commission of Canada, helped target spending in our foreign aid programs in sub-Saharan Africa, and promoted investments in expanding broadband access in rural areas in order to connect students and provide educational opportunities.

On MAID specifically, I felt the need to be proactive and circulated this proposal for a process by which the Senate could play a meaningful and constructive role in reviewing the complex legislative and policy issues surrounding medical assistance in dying. Senator Tannas’s amendment and the terms outlined of its proposed parliamentary review committee appear to focus exclusively on medical assistance in dying in the context of the Criminal Code. In my opinion, this would result in a study of narrow scope that will not allow senators to fully apply their expertise and judgment. The committee would not be able to appropriately examine many facets of MAID. The intent of the committee examination envisaged in Bill C-14 was to look at the medical assistance in dying framework as a whole, including the state of palliative care in Canada.

I should also point out that the Senate is simply not in a position to mandate a joint committee. It’s not up to this chamber to direct or demand the membership of individuals from the other place. It is senators, however, who can guarantee the institutional memory of such a committee that would be expressly set up to study and analyze the subject matter of something as contentious and emotional as medical assistance in dying.

After listening to several days of debate and studying the thoughtful amendments proposed by my colleagues, whether or not this chamber chose to adopt them, I would like to hope that many of the suggestions made during the deliberations on Bill C-7 will be an integral part of the discussions and analysis of the MAID review committee. A major part of our debate was about what has and hasn’t been working since Bill C-14 came into force.

I am as eager as all of you, colleagues, to begin a comprehensive review into what MAID practitioners, assessors and family members have experienced — the good and the bad. I am 100% in favour of the concept of review. As mentioned, I have circulated a proposal to constitute a special committee. I am fully prepared to revisit this issue at any time and to launch this review immediately. Just give me the word and we’ll be off to the races, in control of our own agenda as we should be.

The MAID regime was and is irrefutably consequential, and legislators need to know its effects on those closest to the situation.

Colleagues, while I agree completely with the sentiment and the objectives of the amendment put forward by Senator Tannas, in my judgment it would frankly muddy the waters and generate further complexity in terms of the review. Therefore, and I say this with regret, unfortunately I cannot support this amendment. Thank you.

Hon. Gwen Boniface
[20:40]

Honourable senators, I rise to speak in support of the amendment proposed by Senator Tannas.

This amendment creates a blueprint for review with specified timelines, membership and reporting dates to ensure review of the medical assistance in dying regime receives the appropriate and overdue scrutiny.

Senators, we heard at the committee from all three invited ministers at the pre-study, and then again from the Justice Minister while studying the bill, that they are committed to a parliamentary review. In fact, the Minister of Health stated the Government of Canada is committed to conducting a thorough and exhaustive examination through the parliamentary review process. The Minister of Employment, Workforce Development and Disability Inclusion had this to say in response to a question asked by our colleague Senator Boisvenu speaking of the issue of mental illness:

I will reiterate that our preference was to address this issue within the broader context of the parliamentary review, which is imminent and which I would suggest, had we not been in a pandemic, would have already started by now.

The Minister of Justice said at the same pre-study a parliamentary review has always been planned and still is.

Now, these three quotes all come from the pre-study at Legal Committee. When I asked Minister Lametti about any update he could provide on the progress of a parliamentary review during the Legal Committee’s study of Bill C-7 itself, he said:

We’re committed to doing it. I can’t give you any details on what form that parliamentary review will take, but I have been pressing to the best of my abilities to be in a position to make that announcement as soon as possible.

He continued:

I share your view that it’s critically important to have an idea of how we will move forward across both the House of Commons and the Senate and to ensure that we have adequate time to work with experts and work with each other . . . . I’m sorry I can’t give an answer on the actual vehicle at this stage.

Well, senators, here is a vehicle. I can sympathize with the position the government finds itself in. A minority government is enough to add complications into planning, let alone a pandemic, but these reasons still do not obviate the critical importance of a review on matters of life and death. It also concerns me that the Minister of Justice couldn’t provide any update between when he first appeared for the pre-study and when he returned for our study on the bill itself. Over two months had elapsed with no progress on something so vital.

The Minister of Justice wants to include both houses of Parliament in this review process. This can be found in Senator Tannas’ amendment by creating the joint committee. The composition of the joint committee includes both the House and the Senate. Senators can help carry the institutional memory.

The amendment also considers an electoral cycle. I have heard the chatter about the impending election and I expect other senators have too, but the underlying importance of this amendment is that the review is necessary and should be treated as a priority.

The responsibility is on us as senators and members of Parliament in the other place to work together on significant and sometimes contentious issues for all Canadians. We have tough decisions to make, but making tough decisions is the main part of the job as legislators. I have good news, fellow senators: making the choice to conduct a review is an easy decision. It shouldn’t matter that we’re in a minority government situation, and the speed bumps a minority situation can impose shouldn’t be reason to see such a delay on the review process. This is something every parliamentarian should want to see, which I think can make those speed bumps less jarring in this circumstance.

It’s not just parliamentarians who want to see a review. We have heard from witnesses testify to this effect as well. For example, Dr. Stephanie Green, President of the Canadian Association of MAID Assessors and Providers, had this to say in a response to a question from Senator Dalphond:

We welcome a robust conversation, which we expect will be coming forward very soon in the legislated review of Bill C-14. We hope to take part in that discussion.

Helen Long, C.E.O. of Dying with Dignity Canada stated:

The parliamentary review also calls for study of the use of advance requests, access to MAID by mature minors and the state of palliative care. We repeat our call for immediate commencement of the review to allow a thorough and evidence-based discussion of these issues.

We also heard testimony from witnesses who were questioning why the government was moving forward with Bill C-7 when the five-year review had not yet begun. We heard this question from the Executive Director of Toujours Vivant-Not Dead Yet, Amy Hasbrouck; Dr. Leonie Herx; and Bonnie Brayton with the DisAbled Women’s Network of Canada, among others. In fact, a review was possibly the issue that achieved closest to consensus status during our testimony among all witnesses.

This amendment sets up a visible process and removes any uncertainty about a parliamentary review going forward. There are clear timelines to get this joint committee struck and fair reporting dates. Ultimately, honourable senators, the review is long overdue. While the Bill C-7 process has certainly been educational, many issues around MAID are still under-studied and clouded by either misinformation or no information.

Let us pave the way forward. I ask you to support Senator Tannas and this very important amendment. Thank you. Meegwetch.

The Hon. the Speaker pro tempore
[20:46]

Senator Forest, you had a question, but your time is up.

Hon. Pierre J. Dalphond
[20:47]

Honourable senators, this amendment, if adopted by the other place, will compel the government and the two chambers to soon form a joint special committee to conduct a comprehensive review of medical assistance in dying. I will support this amendment because with the joint committee, such a forum will provide a more high-profile and consequential parliamentary review process than is currently required.

As we know, yesterday this chamber made an amendment in favour of the principle of advance requests speaking with substantial majority. I didn’t vote for that amendment because I do believe that we need a detailed framework for a viable model and that we have not yet received adequate study, scrutiny and input from experts.

Yesterday, Senator Munson’s comments did resonate with me when he said that by adopting Senator Wallin’s amendment, the Senate would send a message to the House of Commons and Canadians that our country needs to be serious about developing advance requests in our public policy.

Forming a joint committee will add to this momentum and possibly give a path to the government to answer to the short amendments adopted yesterday to allow advance directives for MAID. Such a move will then answer Senator Boisvenu’s desire to have a diligent and effective parliamentary review toward the framework for advance requests, especially for neurocognitive disorders. I think that would be a nice birthday gift to give to him, as he is going to celebrate one more year tomorrow.

Joint special committees are rare. As it happens, the last one was the Special Joint Committee on Physician-Assisted Dying in 2016. On that committee, the Senate was represented by Senator Seidman and former Senators Cowan, Joyal, Ogilvie and Ruth.

Notably, the joint special committee recommended the ability of MAID for non-terminal, grievous and irremediable medical conditions that cause enduring suffering as proposed by Bill C-7.

The joint committee further recommended that individuals not be excluded from eligibility for medical assistance in dying based on the fact that they have a psychiatric condition, and MAID should be available for those enduring intolerable psychological suffering. This recommendation could be dealt with if the House of Commons accepts Senator Kutcher’s amendment.

The joint committee also recommended the availability of advance requests “after one is diagnosed with a condition that is reasonably likely to cause loss of competence or after a diagnosis of a grievous or irremediable condition but before the suffering becomes intolerable.”

As in 2016, a joint committee could greatly assist the government in finally delivering results on advance requests and other issues not addressed in Bill C-14 and Bill C-7, as well as review experiences with MAID since 2016.

For these reasons, I invite you to support Senator Tannas’s amendment.

Thank you, meegwetch.

Hon. Marty Deacon
[20:51]

Honourable senators, I rise today to speak in support of Senator Tannas’s amendment.

Over the course of the debate on MAID, the lack of hard evidence, like numbers and case documentation, has been trying. We have seen a number of amendments that were all worthy of our consideration, but I suspect that I speak for many when I say, when deciding which way to vote on some of them, I would have preferred more hard, purposeful and meaningful data.

I give the Legal and Constitutional Affairs Committee all the credit in the world for doing what they did. They moved heaven and earth to hear the 130 witnesses over the course of a few days, and the testimony they gathered has informed my thinking on this legislation a very great deal.

But I think we can agree, colleagues, that on an issue as significant as MAID — to revisit this topic before Parliament has had a chance to conduct a thorough review of the law — we are voting on this bill, it feels like, with one hand a bit tied behind our back.

The review process is often forgotten and made a low priority over time. We cannot and must not let this happen. Facts and data tell the real story if we ask the right questions.

When Bill C-14 passed, we had some idea that the legislation would be challenged, and many rightly surmised that its return to Parliament for some fine-tuning was a foregone conclusion. Hindsight being what it is, it’s easy to say that waiting for five years from Royal Assent to commence a review might have been wishful thinking. We did not know that the government would choose to alter some other areas of legislation that the courts didn’t address directly, like eliminating the reflection period for those whose death was reasonable and foreseeable. I would have preferred more consistent data that we could have referenced when considering this legislation, but what I saw was incomplete, at times, or came with some fairly significant qualifiers.

Honourable senators, that is why I’ll be voting in favour of Senator Tannas’s amendment. It starts the clock on this review immediately, striking a parliamentary committee within 30 days of this act receiving Royal Assent. It sets the deadline for its review for this year as well, barring an election. This amendment acknowledges how important a review of the legislation is. It can’t fall by the wayside due to logistical difficulties presented to us by the pandemic.

The data must be qualitative, quantitative, and of course, race-based. I don’t think it’s a stretch to say that we’ll be tinkering with the parameters around MAID for some time.

Legal access to this procedure is still relatively new in this country. As time passes, we will learn more about what we have gotten right, and sadly, what we may have gotten wrong. We’ll be agile, review, adjust and ensure we are doing this on behalf of all Canadians — all Canadians.

It is crucial, honourable senators, that we learn what we can, as this is quite literally a matter of life and death. Quickly organizing committee meetings when legislation comes our way just won’t cut it. We need something with the weight of a parliamentary review to get this right. We need to have a base of knowledge to work off of, so when this comes to us again, as it inevitably will, we have the data and the story.

We need to have proper consultation with the various communities in Canada that this will disproportionately affect and impact. Only then will we be able to tackle this issue in a way that it rightly deserves.

Thank you, honourable senators, and thank you, Senator Tannas, for introducing this amendment, which I look forward to supporting.

Hon. Frances Lankin
[20:55]

Honourable senators, I appreciate the opportunity to speak to this amendment. I also want to thank Senator Tannas and Senator Boniface for bringing this forward to us.

Senator Gold, I understand the points that you have raised. Respectfully, it’s not that I disagree with you. I understand. I accept what you have said, but I think there is a route open to us here that we should take, which is represented by the amendment that is in front of us.

People have made the argument, not just on the debate on this amendment but on virtually every amendment we have spoken about, there have been one or more senators who have talked about the lack of review and our inability to get to that — for legitimate reasons — and also how difficult it has been to delve into some of the issues raised in this particular bill without access to the data, and to thoughtful review and discussion between parliamentarians about a road forward.

I would point out that there will inevitably be more court challenges and decisions to come. I don’t think any of us can predict when we might be in a situation again of government and Parliament having to respond to timelines in a court decision.

Second, I support the idea of a joint parliamentary review. In addition to the arguments that have been made, perhaps it will bring more gravitas and a higher profile in terms of the recommendations coming from such a review. This is not frequently done, but when it has been done, I think there is great benefit to having senators and members of Parliament from the House of Commons together, sharing views. We play different roles, we come from different backgrounds and expertise to study bills, and we study them in different ways.

A number of speakers over the last few days have spoken to the length of the pre-study and committee study that was undertaken in the Senate, and in the House of Commons there was less time available.

On the other hand, elected politicians have a much closer connection to their constituents. It’s not that senators don’t consult or work with organizations and don’t hear from individual people. We all do. But there is a different relationship that exists between elected members and their constituents and the kinds of constituency work that they do. It is different from what we do. I think we would benefit greatly with the bringing together and the melding of both types of perspectives.

So I will support this, and I urge others to support it as well. Thank you.

Hon. Renée Dupuis
[20:59]

Honourable senators, I am quite concerned that governments are not respecting laws passed by Parliament that provide for a parliamentary review mechanism, such as the law on medical assistance in dying that was passed in 2016. I certainly understand that we are dealing with very unusual circumstances, such as COVID-19, that may interfere with a government’s ability to take action, but I would like to remind senators that the Truchon decision was rendered in September 2019 and that the government knew very well that section 10 of the 2016 law existed. The government could have initiated discussions and started the review at that time. It was a choice the government made, as is its right, its prerogative. However, I think that the Senate’s role is to ensure that these parliamentary review mechanisms work.

The review mechanism is very important because it enables Parliament to hold the government to account, follow up on the monitoring of laws, hear from government agencies that are responsible for implementing those laws, and assess social change with regard to a subject covered by a law by hearing from citizens, much like we have been doing these past few weeks with Bill C-7. We have heard from a great many people who said that they sincerely hope that some of the fundamental issues that are not addressed in Bill C-7, and others that are, will be part of this parliamentary review.

I think that this parliamentary review mechanism is crucial to the functioning of our democracy, and I believe that we should focus on determining how the Senate can fulfill its responsibility of ensuring that legislation requiring parliamentary review is respected by governments.

I must say that what concerns me even more is that this is not at all an isolated case. Other laws have been passed, other parliamentary reviews that should have been done still have not been, and this has gone on since long before this government became a minority one.

I will therefore be voting in favour of this amendment.

The Hon. the Speaker pro tempore
[21:01]

Are senators ready for the question?

The Hon. the Speaker pro tempore
[21:01]

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Some Hon. Senators: Agreed.

An Hon. Senator: On division.

(Motion in amendment of the Honourable Senator Tannas agreed to, on division.)

[21:02]

Honourable senators, this speech is unplanned but, given the amendment was adopted, I’m still not convinced that a review that hasn’t been undertaken in five years can be done in the timeline that was given in the amendment. We heard about the concerns around a lack of consultation with Indigenous communities, the complexities of that and how much time that will take, and we heard from various vulnerable groups, including a vast majority of advocacy groups and those living with disabilities, about their concerns with Bill C-7.

I would absolutely want the review. Senator Tannas, I didn’t want to vote against it, yet what I heard senators say in their support of your amendment is that there was a lack of hard evidence. Our study of Bill C-7 was difficult, given the lack of evidence and questions unanswered.

So they supported your amendment, but they’re going to support this bill and we are going forward. We have opened it even further. I’m rising today to simply say that, in our consideration in the final vote with Bill C-7, the concerns that were just raised during this amendment debate should be carefully considered by all senators. As a nation, this regime is very concerning. I understand why we had to do it. We needed a federal framework, and we needed to have something in place so that it would protect those we wanted to protect. We all agree on that.

But with Bill C-7, there’s a lack of hard evidence that many have said we didn’t get to see because there was no review. It does still concern me, so I just wanted to put that on the record. I know we will continue debate at third reading, and I plan to speak to the bill again on Tuesday.

The Hon. the Speaker pro tempore
[21:04]

Do any other honourable senators wish to intervene in debate on the theme of the review process and coming into force of the act?

If not, debate on this theme is considered concluded.