Honourable senators, I rise today to speak to an issue which deserves much more time and attention than my allotment permits. Although I am certain that other senators will be speaking to this issue as well, it warrants as much amplification as this chamber can give it.

I’m referring to the government’s colossal failure to consult with Indigenous peoples. During our committee meetings on Bill C-7, witnesses raised this concern repeatedly. Scott Robertson, Senior Associate of the Indigenous Bar Association told the committee:

The development and drafting of these amendments have been anything but respectful, and have virtually ignored the participation and insight of Indigenous peoples.

Neil Belanger, Executive Director, British Columbia Aboriginal Network on Disability Society, testified:

I am only aware of one meeting held by the government with Indigenous organizations, many of which could not attend.

Dr. Carrie Bourassa, Professor, Community Health and Epidemiology, College of Medicine, University of Saskatchewan told us:

Six elders from Métis and First Nations in British Columbia, Saskatchewan, Manitoba and Ontario offered their knowledge to end-of-life attitudes, practices, issues and concerns. Notably, the elders felt that Indigenous peoples had not been consulted on the issue of MAID . . .

Tyler White, Chief Executive Officer, Siksika Health Services, said:

It is alarming that the consultation thus far on Bill C-7 with Indigenous peoples of Canada, whom this bill will disproportionately impact, has been grossly inadequate.

Bonnie Brayton, National Executive Director, The DisAbled Women’s Network Canada, testified: “Indigenous people with disabilities have not been consulted.”

Dr. Thomas Fung, Physician Lead, Siksika Health Services, told us: “No one in our community is aware of the details of this bill, and certainly no one in leadership has been consulted on this.”

Colleagues, although my time is limited, the examples of this government’s blatant disregard for the concerns of Indigenous peoples and, indeed, all peoples — compromised peoples, different groups — are certainly not.

At one of our committee meetings, I asked a panel of witnesses that consisted of four Indigenous representatives if they thought we should hit the pause button on this bill until more consultation was done. Three out of the four gave us an unequivocal “yes” and the fourth a “maybe.” This is a damning indictment of the government’s handling of this bill.

During their public consultations on this bill last year, the government held a single round-table discussion with a focus on Indigenous perspectives. At that round table, they did not include a single Métis or Inuit representative, and not a single representative of the Indigenous persons with disabilities.

When we asked Minister Lametti about the stunning failure to consult, here’s what he said: “We put the round tables together as best we could.” That’s their best. Perhaps he neglected to read his own mandate letter from the Prime Minister, which said:

As minister, I expect you to work in full partnership with Indigenous peoples and communities to advance meaningful reconciliation.

Colleagues, on the one hand, this government has introduced legislation to ensure that the Government of Canada takes all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples. Yet, on the other hand, they introduce legislation that is deeply troubling to Indigenous persons and are ramming it through without even bothering to properly consult.

What little consultation they did do, they basically ignored.

In their March 2020 What We Heard Report, a public consultation on medical assistance in dying, the government wrote the following:

Some Indigenous people at the roundtable highlighted the differences in how Indigenous people view death and dying. They stated that there is a need for guidance from Elders and spiritual leaders. This would help to make sure MAID is done in a way that is culturally safe and appropriate. Some stakeholders said it was difficult to talk about MAID and advance requests in the North. Many patients speak a different language. Certain words and terms in the MAID law do not exist in their language. This makes communication about MAID difficult.

The report makes it sound like the government was listening, until we found out at committee that none of these concerns have been resolved.

Colleagues, I’m going to take a minute to talk briefly — and not to her amendment, because that’s for later — but after speaking with members of the disability community — switching to disability — extensively — and hearing the eloquent testimony of disability advocacy organizations at committee, I am convinced that the entire creation of the second track and the purpose of this legislation is discriminatory, while the first track of death being reasonably foreseeable is available to all Canadians with an irremediable and grievous medical condition who are approaching death. The second track singles out only the disability community and implies that their lives are not worth living.

This is a Charter-protected group that has been singled out and unjustifiably discriminated against. Of all the amendments that we have heard here today, honourable senators, this amendment that Senator McPhedran would like to — I’m not speaking to her amendment; I’m using her only as an illustration — that this is the only one that truly takes to heart what the disability community is asking for. I thank Senator McPhedran.

Colleagues, this entire bill is a colossal, spectacular failure on the part of the government. It is unacceptable and I, for one, am for hitting pause on this situation. Thank you.

Honourable senators, I’m here today to speak about the potential negative impacts of Bill C-7 on the disability community.

Concerns regarding prejudice and stereotyping continue to be top of mind for Canadians. One such area that is not getting the attention it deserves is the prejudice against and stereotyping of the infirm and the disabled. We must give voice to the disability community and ensure that the laws we are bringing forward do not negatively impact them.

Just look at those who have been the most impacted by the COVID pandemic in this province and the one next door — those in long-term care homes who, by definition, require the care and attention of others. COVID swept through many of those facilities, killing thousands across Canada. It was a scandal of monumental proportions in the first wave and then was allowed to happen again in the second wave. I do not think for a minute that, if the toll COVID had taken on them had been inflicted on any other group to such an extent, it would have been allowed to happen again in a second wave. This has its counterpart in MAID and disability.

As UN human rights experts stated in January:

We all accept that it could never be a well-reasoned decision for a person belonging to any other protected group – be it a racial minority, gender or sexual minorities — to end their lives because they experience suffering on account of their status.

Yet we seem to permit this type of thinking of those who are among the most vulnerable. It is not hard to imagine why Krista Carr of Inclusion Canada, a national organization that represents people with disabilities and their families, testified: Our biggest fear has always been that having a disability would become an acceptable reason for state-provided suicide. . . .

This is not idle speculation on her part. Gabrielle Peters, who also testified before the committee, appeared in Maclean’s magazine last week, in which she described the experience of Dr. Corinna Iampen. Dr. Iampen found herself recovering in the hospital from a permanently disabling injury that was not life-threatening, yet the doctor at her bedside asked if she wanted to speak to the medical assistance in dying team. She was shocked. She was not considering ending her life, but the doctor assumed she would.

Honourable senators, in closing, I want to echo the words of my colleague, Senator Don Plett, who said in his speech the other day:

. . . our unwillingness to see and hear the disability community when they have been asking for support — while we move at an alarming rate to offer them assisted suicide when we are under no obligation to do so — is frankly a national tragedy.

I would go one step further. It is more than a tragedy; it is a disgrace. In our hurry to offer these options, we are making too many assumptions of what is best for the disability community. It is of the utmost importance that we take additional time to work with the community to gauge their needs and make sure that our efforts offer them the support they need on these important issues. Thank you.

Honourable senators, the government has championed measures aimed at increasing equality, such as the Accessible Canada Act and the promise of forthcoming distinctions-based Indigenous health legislation, while simultaneously prioritizing Bill C-7 — a step forward for the rights of some individuals that risks entrenching and increasing inequality for those most marginalized within the health care system.

For those who were not aware before, this pandemic has laid bare the discriminatory treatment and toxic intersectionality of poverty, racism, ableism and ageism. The inadequacy of long-term care; the inaccessibility of palliative care, home care and community-based care; the systemic biases; and the labour crises occasioned by discriminatory attitudes about the value of caregivers in institutions from hospitals to long-term care facilities have resulted in thousands of preventable deaths. With Bill C-7, the government has prioritized in the midst of a pandemic a measure that stands to increase rather than redress these intersecting inequalities and the fatal consequences they have produced.

Many have said the Criminal Code is too blunt an instrument to remedy the complex and long-standing inequality that witnesses have brought to our attention. This is true. However, the Criminal Code is one of very few levers that the federal government has to advance a vision of justice, inclusion, dignity and respect for all persons. Broadening the exemptions to the rules of the Criminal Code in the ways that Bill C-7 demands may provide comfort to Canadians for whom the reach of personal autonomy is largely unfettered by social and material disadvantage. But that comfort will come at a price: the price of the lives of those who exist in the margins, who are already telling us they feel further devalued.

Like the discriminatory attitudes that underpin them, these inequities may be rendered a little less visible, but no less urgent. UN representatives this week issued a direct caution to the Canadian government about discrimination in this bill and failures to consult persons with disabilities. They zeroed in on the unintended consequences of otherwise well-intentioned legislation.

Why did the government not apply a disability lens to MAID? Why did we not, at the very least, ensure the review of the current provisions was conducted prior to consideration of this bill?

Just as we currently look back and shake our heads at the eugenics practises and genocidal legislative and policy decisions of our forebears, many are already questioning the wisdom of a legislative decision to expand the assisted suicide provisions of the Criminal Code without first doing our level best to acknowledge, much less address, the systemic inequalities that give rise to stigma-informed and discriminatory treatment and suffering.

Is it really the case that we can ignore these realities and argue that those urging us to exercise caution are merely paternalistic? That the disability rights community that has fought for autonomy and inclusion for people with disabilities since its inception is somehow just fear mongering and retreating into paternalism?

Our history is rife with examples of where those with privilege and power have trumped the interests of those who are deemed less worthy of protection. Will this bill do so without acknowledging the role that inadequate health, social, housing and economic supports have played in causing pain that adequate supports might relieve?

Today’s report of the Parliamentary Budget Officer tells us again what we cannot ignore. Despite federal government housing initiatives, Indigenous families remain one and a half times more likely to be in housing need than non-Indigenous families. Inuit families are 2.4 times more likely. Nearly one third of homeless shelter users in Canada identify as Indigenous. Current programs fail to address and thereby perpetuate colonialism and systemic racism in ways that will affect the care that people with health needs receive and the suffering they experience. How can we consider medical assistance in dying an acceptable choice for those whose only other choices are to be on the streets or in an institution?

Our failure to provide the means for people to live in community has resulted in too many people in long-term institutional care because they cannot access the supports they need to live at home. And, as witnesses — from the Correctional Investigator to health care professionals working with those most marginalized and people living on the streets — have detailed, Bill C-7 measures will ensure death is easier to access than most other services or relief.

We have heard that that non-end-of-life medical assistance in dying is meant to respect the choices of individuals about when their suffering becomes too much to bear. But what is there to choose, honourable colleagues, if poverty, racism, ableism, institutionalization and marginalization obviate other options for relieving suffering?

Are we calling it a choice to sanitize the fact that Canada’s abject failure to extend lifelines through social, housing and income supports means that some people who are not dying will be considering death to escape difficult and painful lives?

As senators, we have an obligation to represent the interests of those who are often not well represented in the other place. We need look no further than the Joliette hospital where, on the same day, a relatively well-off, apparently able-bodied White man reported receiving caring and considerate health care, whereas a less well-off Indigenous woman with a disabling heart condition was subjected to sexist and racist abuse as she lay dying.

We can find these examples in most jurisdictions, colleagues. Moreover, as we have seen with Jordan’s Principle, and will undoubtedly now see with Joyce’s Principle, absent appropriate funding and clear guidelines, words and promises alone will not address the systemic and intersecting inequalities in our health systems. To not, at the very least, have reviewed and agreed to a plan to remedy these inequities in advance of this bill is, to my mind, the epitome of irresponsibility, and I don’t consider any one of you, colleagues, irresponsible. Meegwetch. Thank you.

Honourable senators, today I join you to speak at third reading on Bill C-7. Specifically, I will speak to the subject of Indigenous health and the application of the proposed changes to the Criminal Code.

As a member of the Standing Senate Committee on Legal and Constitutional Affairs, I was privileged to participate in the extensive discussions around the issue of medical assistance in dying during the pre-study and the committee stages. Over countless marathon sessions, our committee heard from experts and individuals affected by this legislation. Many had firsthand experiences with MAID and shared their often heartbreaking stories.

I would like to take a minute to thank all of the witnesses for taking the time to speak with us and for reliving their stories so that we can work together to assess this legislation thoroughly.

As an Indigenous person who has spent my entire professional life either working in the health care system or studying the laws that govern it, the subject matter discussed in this bill is profoundly important to me, and, as I have done with all my work as a senator, I approached the study of this legislation through an Indigenous lens.

Canada has often forgotten to examine or has purposely excluded the impact that legislative changes will have on Indigenous peoples across this country. Sadly, this is again the case with Bill C-7.

As an Indigenous member of the committee studying this legislation, I tried to ensure a diverse range of Indigenous voices were heard at the committee stage. These voices should have been heard much earlier in the process, including during the initial envisioning of this legislation and, certainly, while it was being drafted.

In the testimony we heard from Indigenous witnesses, they all spoke about the profound lack of health care services available to Indigenous peoples across Canada, especially in northern and remote communities. This issue is always a concern of mine, but it is significantly more worrying when discussing this legislation.

In her powerful testimony, Dr. Lisa Richardson, an Indigenous physician and strategic lead for the Centre for Wise Practices in Indigenous Health said:

In an environment where both systemic and interpersonal racism exists, I don’t trust that Indigenous people will be safe. I don’t trust that anti-Indigenous prejudice and bias will not affect the decision making and counselling about MAID for Indigenous people, no matter how much education is given.

This sentiment was echoed by Indigenous witnesses and allies throughout our hearings on this bill and during the pre-study. How can we expect Indigenous people to feel safe in accessing a process as deeply personal as MAID, when both this legislation and our health care system as a whole have chosen to ignore systemic racism they face when accessing it? I worry that both lack of access to and the fear of accessing the health care system will make it difficult for Indigenous people to exercise their constitutionally protected autonomy to decide if and when they want to end their lives.

Further to this point, Marcella Daye, Senior Policy Advisor to the Canadian Human Rights Commission, highlighted that the development of culturally appropriate services related to MAID:

. . . must ensure the involvement of the communities themselves, including, where appropriate, the involvement of elders, so that the events around providing a dignified death are not narrowed to a medical physician-oriented process but that they can fully encompass the ceremonial and cultural importance that exists for many Indigenous persons.

Honourable colleagues, as with any legislation, there are people on all sides of the issue, and during the pre-study and study I found myself completely torn on what I should do in relation to this bill. I believe we must move forward with compassion at the forefront of our decision making. There are people suffering in Canada who experience immeasurable and unimaginable pain that few, if any, of us in this chamber can even imagine.

When I heard the testimony from Dr. Cornelia Wieman, president of the Indigenous Physicians Association of Canada, the potential harm we can do by not passing this became clear to me. In sharing her experiences with us, she said:

Many Indigenous physicians work on the front lines. We see the suffering of certain people. Granted, we need to provide more health services and supports to people who are, for example, in the midst of a terminal illness, services that they don’t necessarily have equitable access to.

But on the other hand, for people who can make that informed decision for themselves, with the existing safeguards in place, people have had access to MAID. Some Indigenous people have done that. She went on to say:

I have had a very close friend of mine who died of cancer, and sitting with her just for one minute in severe chronic pain to me seemed intolerable, but I wasn’t the person with that pain. So we have to also bear in mind that we can talk about these issues in a professional academic way but we must also keep in mind that right now at this very instant there are people who are suffering intolerably.

Colleagues, the longer we delay in passing this bill, the longer we will force people to suffer. The decision to use MAID must be a decision left strictly between a patient and their doctor in a culturally appropriate manner. Indigenous peoples must have the option to opt in or opt out based on their inherent right to self-determination. As sovereign nations, they are the only ones that know what is best for themselves.

In a letter I received from Indigenous leaders across the country, the call was for the Government of Canada to:

Recognize the value of Aboriginal healing practices by respecting Indigenous peoples’ right to self-determination in spiritual matters, including the right to practise our own traditions and customs when supporting those who are dying without discrimination in the health care system.

In discussing the view of Indigenous peoples on any issue, we must first recognize that there is a huge diversity of Indigenous peoples, and no one body or one person can speak for us all. Dr. Suzanne Stewart, director of the Waakebiness-Bryce Institute for Indigenous Health and associate professor at the University of Toronto school of public health, stated that it is important — it is critical —

. . . to develop Indigenous, community-driven psycho-education materials; clinical Indigenous culturally safe and trauma-informed training for all MAID health professionals; and Indigenous culturally based services for MAID as standard practice in all health care settings offering MAID.

Ultimately, it is my view that we should pass this legislation, but in passing it we must, as a Senate, commit to do better in the future. We cannot continue ignoring Indigenous peoples like legislators in this country have done for centuries.

Our first opportunity to revisit this issue as part of a legislatively mandated parliamentary review is absolutely critical. With the recent announcement by the federal government about distinctions-based Indigenous health legislation, it is my expectation that it will be Indigenous-led and these Indigenous voices will be magnified so that we, as a country, will be able to examine how MAID is being used, and work to improve the process and health care for Indigenous peoples. Meegwetch. Thank you.

Do any other honourable senators wish to intervene in debate on the theme of vulnerable and minority groups, healthcare (including palliative care) and access to medical assistance in dying?

If not, debate on this theme is considered concluded, and the Senate can proceed with debate on the next theme, which is conscience rights.

Honourable senators, I’m sure there were some that were hoping I would come in here and some were hoping I would miss this. Nevertheless, Your Honour, I’m presenting an amendment.

Colleagues, I rise today to bring forward an amendment to enshrine meaningful conscience protection in Canada’s medical assistance in dying framework.

As senators who took part in the committee study will know, this issue came up on almost every panel during our pre-study, and again in our second committee study last week. In fact, it was striking how often the issue was raised, and how passionate the pleas have been since. There were certainly concerned physicians and associations when we studied Bill C-14, and I advocated on their behalf. But this time, it was one of the most prominent themes of our study.

I contend that there are two reasons for this. First, the question of how this law will be applied by the provinces is no longer hypothetical. We have seen the requirements put on physicians who do not wish to participate in the ending of a patient’s life. In fact, as the Canadian Society of Palliative Care Physicians stated, “. . . expectation of physician participation of MAID in Canada far exceeds that of any other permissive jurisdiction in the world.” Second, this bill expands access to assisted suicide to Canadians who are not approaching the end of their natural life. This, understandably, is even more in practitioners’ greater thoughts.

For some physicians, taking part in or facilitating such a procedure would be a violation of their religious freedom, for some a violation of their medical ethics and their sworn Hippocratic Oath. For some Indigenous practitioners, providing or facilitating MAID would go against their cultural values and belief systems. For some practitioners, it would be a complete violation of their medical judgment to refer, for example, a patient with a disability for a life-ending procedure when it is their professional opinion that there are treatment options available.

During our pre-study, when I asked Minister Lametti about the need for conscience protection in this law, he referenced the clause in Bill C-14 and stated, “That safeguard is still there.” However, we know now, clearly, that this clause provides no protection for health care professionals. It is true that no doctor in Canada is required to physically administer the lethal substance to a patient. However, in some parts of our country, practitioners are forced to provide an effective referral that will ultimately result in the death of their patient. The major understanding that seems to remain among legislators and regulators is what a referral means in medicine.

The Canadian Medical Association explained the problem with forced referrals clearly when we were studying Bill C-14. They stated that an effective referral is essentially the endorsement of a procedure, which they acknowledged is morally problematic for many practitioners.

One witness who testified on the last day our pre-study, Dr. Coelho, said she was following the hearings, and noted this deep misunderstanding from some senators of the meaning of a referral. She said physicians make referrals to a specialist, for example, when a treatment is outside of their expertise, noting:

We don’t make referrals for things we don’t think are good to our patients. . . . There is an ethical implication in a referral. It is not just a piece of paper and a signing off to someone else.

The government, in Bill C-14, acknowledged that conscience protection was needed. However, the bill included a clause that was unenforceable, which explains why we have varying policies and varying degrees of forced participation across the country.

Presently, most provinces do not require effective referrals and have worked out reasonable access for patients without coercing physicians to participate in the process.

Every practitioner advocating for meaningful conscience protection is more than happy to provide a website, a phone number or provide information on any other self-access mechanism to a patient.

In Alberta, for example, patients have access to the MAID Care Coordination Service Team without needing a referral from a physician. In Manitoba, there is a clear standard of practice explaining that for the grounds of a conscience-based objection a member can provide timely access to a resource that will supply accurate information about a medical treatment or a procedure.

British Columbia’s physicians are offered similar protection, and yet — and this is crucial — the provincial colleges have confirmed that in provinces where the doctor has a right to opt out and self-access mechanisms are in place for patients, they have experienced no barrier to access — none whatsoever.

However, in British Columbia there is no institutional protection, which explains why Delta Hospice, a palliative care centre, has been forced to shut down. The hospice chose to opt out of MAID as they believed it was a violation of the fundamental principle of palliative care: namely, not to hasten death. The same lack of institutional protection exists in Ontario, Prince Edward Island and Quebec.

With respect to forced referrals, Nova Scotia mandates effective transfers of care. However, physicians have assured us this has proven to be a referral by another name, as the transfer of care must be a willing MAID provider and has to be initiated by the objecting physician.

Ontario physicians are required to provide effective referrals for their patients, even though Telehealth can be used as a self-access mechanism for MAID. The infrastructure is there, and yet objecting physicians are being forced to leave the profession or the province.

Physicians in this chamber will be familiar with the concept of MRP, or most responsible physician. When a patient is referred for surgery, for example, the surgeon becomes the most responsible physician for that patient during the procedure and would be liable if something unethical ensued. However, Ontario hospital policies are making conscientious objectors who are forced to refer remain the most responsible physician for that patient rather than the MAID provider themselves, even if that is in direct contradiction of the objector’s ethics. This is wrong, colleagues.

Many have asserted that this should be left up to the provinces to regulate. However, what has resulted since Bill C-14’s enactment is a patchwork of degrees of forced participation and lack of clarity.

The recent Ontario Medical Association’s letter to the Senate was quite a remarkable indication of the need for clarity in federal legislation. When a provincial medical association asks Parliament to include explicit conscience protections for their physicians directly in our legislation, that is a pretty good indication that the system is not working.

Yesterday, many of us received a letter from over 40 rabbis expressing grave concerns with the policies of the College of Physicians and Surgeons in Ontario. The letter states:

The impending enactment of Bill C-7, along with the college’s policy of requiring participation or facilitation of MAID, poses grave religious and moral issues to members of the Jewish faith.

The letter continues:

As it now stands, Bill C-7 would mean observant Jews who are health care workers will either no longer be welcome in the medical field or will be forced to abandon their deeply held beliefs.

The rabbis conclude by pleading with the Senate for conscience rights, protecting physicians from direct or indirect participation in MAID.

In provinces that currently have fulsome conscience protection, many physicians find it unsettling when the policies can and have changed at the whim of the provincial colleges. Physicians have no certainty as to the level of conscience protection they will be entitled to or for how long.

We know that Indigenous groups and leaders are gravely concerned about their lack of conscience protection, particularly as the assisted suicide regime is radically expanded. All of us received a letter from Indigenous leaders across the country stating:

Given our history with the negative consequences of colonialism and the involuntary imposition of cultural values and ideas, we believe that people should not be compelled to provide or facilitate in the provision of MAiD.

They continue:

Regardless of one’s opinion of MAiD, the right to self-determination and to act on one’s conscience is recognized as a fundamental freedom in all peoples.

Colleagues, all of these appeals are a clear indictment of the lack of protection under Bill C-14.

Psychiatrist Sephora Tang, in a powerful presentation told us:

If the status quo remains, the state is essentially being permitted to compel an unwilling practitioner to engage in an action they believe to be harmful to another person, and effectively sets up the conditions for inflicting moral injury upon health care professionals.

Honourable senators, it has been said that the Criminal Code is a blunt instrument; however, in the context of this legislation, it is our only tool to implement policy with any enforceability.

The amendment will criminalize any individual or institution who compels another individual or institution against their will to provide or facilitate in providing medical assistance in dying. The second clause clarifies that the obligation to provide the information is not included in the term “facility.” This is to ensure that physicians will continue to be required to provide information on self-access mechanisms, which have been and continue to be effective across Canada.

Let us be clear, colleagues: The effect of this will be to force provincial colleges to establish policies that are in line with Parliament’s intent.

Colleagues, if the last few days have demonstrated anything, it is that there is no clear consensus on how to legislate compassion, how to ensure that adequate safeguards are in place or how to achieve the goal of patient autonomy, and an even higher degree of professional disagreement and moral variances exists within the medical profession.

Given that we know there is no certainty or uniformity among the provinces, no barrier to access in provinces in which practitioners are fully protected, and given the pleas we are receiving to intervene from forced participants, Indigenous leaders, professional associations and even a provincial medical association, it is incumbent upon us to make this protection clear, certain and consistent. In a pluralistic society, I submit this is the only responsible and balanced approach. We owe it to our health care professionals.