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 7 by adding the following after line 30:

“1.1 The Act is amended by adding the following after section 241.2:

241.21 (1) A medical practitioner or nurse practitioner who provides information on medical assistance in dying to a person who has a grievous and irremediable medical condition is guilty of an offence punishable on summary conviction.

(2) Subsection (1) does not apply if the information provided on medical assistance in dying was requested by that person.”.

Thank you, honourable senators.

Senator Plett, we have some senators who have some questions for you.

Senator Plett, would you accept a question?

Yes. I will.

Thank you very much. I am pleased with the changes that you have brought forward to what was considered in the House of Commons. I’m not completely convinced of how I will vote at this point in time. There are a couple of things, and these are technical and I would like a technical response to it.

I think you know from previous interventions in this debate that I have a lot of questions about federal-provincial jurisdiction and how these two approaches interact with each other, or two jurisdictional responsibilities interact with each other. In this case, it seems to me that the requirements of the ethical codes of the colleges for health care professionals that are involved in the MAID teams — the ethics that are set out, the guidelines that are set out, the implementation by the provinces — all of this that you’re suggesting really falls within that provincial jurisdiction, although I understand completely why you’re looking for a pan-Canadian response.

The other question I want to pose to you, and it was an interesting one — and a conversation I was in with some others in the chamber or on our hybrid chamber as well — are you not suggesting that physicians or nurses or others who are involved in this process are unable to communicate options, which in this case, as a result of Supreme Court rulings are, in fact, individual rights, and the bill and the changes in the Criminal Code are about individual autonomy? These two things worry me. First, the federal-provincial jurisdiction, if you could comment on that. Second, I understand that we don’t want coercion, but how do people get information if they are unaware of this option? Thank you, I’m done.

Unfortunately, the 15 minutes have expired.

Thank you, honourable senators. I’m not going to be voting for this amendment. I’d like to take a few minutes to explain why. I do understand the very legitimate concerns expressed by Senator Plett’s amendment. I recognize and, indeed, the committee heard accounts of persons with disabilities being offered MAID despite wanting to be treated and to continue living. I recognize further that offering MAID to a person who wants all available treatments pursued may cause that person to lose confidence in their practitioner, or may harm their own perception of themselves, and may even influence them to seek a death they might not otherwise have wanted.

But this amendment is neither necessary to protect the patient, nor in the judgment of the government desirable as a matter of law or policy. First of all, it’s not necessary. The eligibility criteria in our law offers protection against persons receiving MAID if that is not, in fact, their genuine desire. A person must give their informed consent under section 241.2(1)(e), and the medical staff or nurse practitioner must inform the person that they may withdraw their consent at any time. And indeed, it remains a crime to encourage a person to die by suicide or by MAID even for practitioners. A practitioner who provides MAID to a person while knowing that they were pressured into it would face criminal prosecution under the current law.

Second, as noted by Senator Lankin in her question, the oversight of the conduct of health care providers — including whether there has been an inappropriate exercise of their clinical judgment or their treatment towards patients — is within the exclusive legislative jurisdiction of the provinces and is the responsibility of the professional regulatory bodies under provincial jurisdiction.

To quote just one witness that we heard, Fleur-Ange Lefebvre, the Executive Director and CEO of the Federation of Medical Regulatory Authorities of Canada:

FMRAC maintains that issues related to physician conscience remain matters of provincial and territorial jurisdiction. We submit that the responsibility to direct physicians as to their responsibilities vis-à-vis patients requesting MAID, when conflicted by conscience, should remain with the physician’s respective medical regulatory authority.

Not only is it not necessary, honourable colleagues, it’s not desirable in terms of law or policy. First, let us not forget that access to MAID is a constitutional right that’s recognized by our courts, grounded in our rights to personal autonomy, and all legislative responses, whether federal or provincial, must keep that clearly in mind. And in this regard, we must also keep in mind the duty of health care professionals. They have a professional obligation to inform patients of all options available to them. Here is what we heard from some witnesses during our committee study.

I will start with Sylvain Le May, from the welcoming and support services for students with disabilities at the Université du Québec à Montréal, who said, and I quote:

People with disabilities who are living with intolerable suffering will not be better served if the government were to criminalize the option to receive MAID from a health care professional. If the government were to prohibit this assistance, these people would not have the opportunity to have their desire to die taken seriously. Listen, different options should be discussed and considered, including medical assistance in dying.

End-of-life care, including MAID, is part of the continuum of care.

Dr. Chantal Perrot, a MAID assessor and provider in Toronto who testified at committee, added in her written brief to the committee:

The legality of and right to MAiD is still not well-known by many Canadians. Requiring people to raise a subject they do not know about is ludicrous and punitive, effectively denying MAiD to many people. Medical practitioners should be not only able, but required to inform their patients of the existence of legal MAiD in Canada and their right to an assessment, without fear of being accused of a criminal act.

Furthermore, honourable colleagues, the proposed amendment would have a negative and chilling effect on health care professionals. The effect of exposing them to the risk of potential criminal liability for giving information might inhibit them from doing what their professional obligation and professional codes require them to do. In this respect, putting some of these considerations together, colleagues, the amendment is an inappropriate and, indeed, possibly even an unconstitutional overreach in use of Parliament’s criminal law power under the Constitution. It reaches to the core of exclusive provincial jurisdiction with no clear compelling criminal law purpose to ground it in Parliament’s criminal law power under section 91.27 of the Constitution Act, 1867.

Now, I try to be modest when I talk about the Constitution. I take very seriously what many senators have said in this chamber about not using it as a club to stifle debate, and I’ve tried to do that throughout my whole career in the Senate. So if it’s not clearly unconstitutional — and I’m not saying that it is — it is most certainly, in my judgment, an inappropriate use of the criminal law power, given that this falls so closely within provincial legislative power.

To conclude, it is neither necessary nor desirable. I will be voting against it. Thank you.

Before we move on to the next senator, I would like to state that for senators who are with us by video conference, many of you have your hand raised. If it’s on the issue of a previous question to a senator, then please remove your raised hand.

Honourable senators, I rise today to speak to this amendment from the perspective of my experience as a rural family physician.

As we’re aware, Canada’s MAID regime was developed as a direct result of the Supreme Court of Canada’s 2015 decision in Carter. Prior to this ruling, any medical and nurse practitioners who provided or assisted with what we now classify as MAID were guilty of an indictable offence punishable by up to 14 years’ imprisonment.

The bill that is before us today is a result of a second court decision that struck down the reasonable foreseeability of natural death as an eligibility criterion in the Criminal Code, as well as an eligibility criterion in Quebec’s Act Respecting End-of-Life Care providing that the person must be at the end of life. Once again, the court found these criteria violated section 7 of the Charter.

The Charter is intended to protect the most fundamental and essential rights of all Canadians. Our courts have consistently ruled that because of the Charter, Canadians may not be prohibited from accessing medical assistance in dying. It is important to remember that our debate today takes place in that context.

Honourable colleagues, in my experience as a family physician, the free flow of information was critical to the relationships I developed over time with my patients. Patients rely on their medical practitioners, as my patients relied on me, to be the ones with the training, professional judgment and integrity to provide them with all the information that was available. They trusted me to offer the best possible ranges of treatment options to suit their unique circumstances. Patient centredness was the core of my practice.

The simple and devastating reality is that there are circumstances in which a patient is in such pain and suffering that accessing care to peacefully end the patient’s life, on the patient’s own terms, may well be the only option out of a range of agonizing choices. It is not about coercion or cajoling. The availability of medical assistance in dying is a crucial part of my daily practice.

From a clinical perspective, patients seeking access to MAID likely have a range of factors that would interfere with their ability to become properly informed. That person is likely elderly, and certainly suffering from a grievous and irremediable condition that is likely causing them considerable and frequent pain. That person’s condition is likely interfering, at least to a degree, with their ability to carry out day-to-day activities; and they are on some medications that may bring with them side effects.

In such circumstances, asking a patient to locate their own informational resources regarding MAID and sort the reliable from unreliable sources may well be beyond the abilities of many of these individuals.

Canadians living in rural communities and remote areas are likely to face even greater obstacles than their urban counterparts, as rural communities tend to have less reliable internet access, resources, support services and consistency of care.

If this amendment is adopted, the patient’s medical providers would not be able to maintain a relationship based on the free flow of information and reliance on professional judgment. The patient’s medical or nurse practitioner would face imprisonment simply for providing information about a procedure that the Supreme Court of Canada has ruled Canadians must be given access to.

As I mentioned in my third reading speech, we must ensure that physicians and nurse practitioners have a practical and feasible pathway to ensure that they are fully able to address their patients’ suffering or intolerable pain, with medical assistance in dying being one — one — of a range of options.

In Newfoundland and Labrador, our regional health authorities play a central role in the coordination of MAID, including supporting patients and providers who need assistance in navigating the service. For medical practitioners who do not support MAID, they are required to refer them appropriately.

Honourable senators, providing information to a patient is an essential component of any medical treatment sanctioned by medical regulation and is critical to ensuring that Canadians can access the care that they deserve. Medical and nurse practitioners must be free to ensure that they can provide appropriate, reliable information without fear of penalty.

On this basis, I oppose this amendment. Thank you. Meegwetch.

Honourable senators, I will speak in opposition to the motion, but from a slightly different perspective. Senator Ravalia is a doctor; I’m going to speak based on my previous life experience where I was called to read and interpret many provisions of the Criminal Code. Thank you to Senator Plett for providing me an opportunity to go back to my old job.

I have the wording in my hands. What is before us will be a new section 241.21, which is made of two paragraphs. One outlines the principle, and the second paragraph provides the exception to the offence which is created in the first paragraph.

Let’s read the first paragraph: “A medical practitioner or nurse practitioner who provides information . . . is guilty of an offence punishable on summary conviction.”

What are the elements of the offence? First, you have to be a medical practitioner or a nurse practitioner. Both expressions are defined in the Criminal Code in the sections dealing with MAID in section 241.1. Who is a medical practitioner? Well, it is a doctor “. . . entitled to practise medicine under the laws of a province.” Who is a nurse practitioner? Well, it is:

“. . . a registered nurse who, under the laws of a province, is entitled to practise as a nurse practitioner . . . make diagnoses . . . prescribe substances . . . . “

These provisions target two groups of people, those I have just mentioned. These provisions will not target psychologists, assistant nurses or all the staff working in the hospitals providing the daily care like helping you go to the washroom, helping you to have a bath or shower, providing you a meal or something else. So it’s very narrow in scope.

When I look at the story that Senator Plett referred to, that of Roger Foley, and I read the reports in the paper that he recorded the conversations with two men, neither of them is a nurse or doctor. One is most likely an accountant in the hospital, because he told Mr. Foley that if he continued staying at the hospital, he would be charged $1,800 a day. That doesn’t sound like a nurse talking. I assume that was someone in charge of the administration. That person said if Mr. Foley didn’t want to pay this, maybe he should consider options, including MAID. That person would not be covered by this provision. That person is an administrative staffer at the hospital.

That’s the first part of the principles that are being proposed to us.

The second part of the principle is that if you are found guilty, you will be punishable on summary conviction. You will remember that about a year and a half ago we amended the Criminal Code to change the penalty of what summary conviction means unless there is something specific. Here, nothing specific is provided, therefore the general rule will apply: two years maximum in jail, a $5,000 fine, or both.

If one of the persons targeted, a medical practitioner or a nurse practitioner, is found guilty, that person would be found guilty of a criminal charge. As you know, a doctor found guilty of a criminal charge will have to face disciplinary proceedings and most likely would be expulsed from the profession.

What is being proposed here is more or less capital punishment for doctors.

Now let’s look at the second paragraph, the principle: “Subsection (1) does not apply if the information provided . . . was requested by that person.” It says “person,” but it must be a patient because it’s in a medical relationship. The exception to the infraction, then, is when the information is provided because it was requested by the patient.

Take the following example: we have a patient in a palliative care centre who knows that he’s nearing death. He’s in the palliative centre because, unfortunately, his death is imminent. Imagine that this patient is suffering unbearably. He can’t take it anymore. One of these days, maybe once a day, once a week, the doctor comes to his room to talk with him. He says to the doctor, “I can’t bear it anymore. I’ve already been here for a week or two. I know I’m near death. I can’t take it anymore. Is there something you can do until God takes me away?”

The doctor can only answer that question by saying, “Well, one of the options, Mr. Dalphond, because you are suffering unbearably, is to offer you continuous palliative sedation. That will put you in a kind of coma. You will no longer suffer because you will no longer feel the suffering.” But he cannot say more. He cannot say, “Well, there’s another option. Continuous palliative sedation will put you in a coma, but MAID could put an end to it while you are conscious.”

I am sorry, Senator Dalphond. Your time has expired.

Honourable senators, I rise today to speak on Bill C-7 and to Senator Plett’s amendment that ensures that every conversation regarding medical assistance in dying is always patient-initiated.

The reason for my support is simple: nobody should be recommending medical assistance in dying to anybody. This amendment ensures that only the patient can start the conversation on MAID, and only then can this life-ending procedure be discussed.

The Senate’s Legal Committee heard considerable testimony from witnesses who supported patient-led conversations. Colleagues, we’ve heard from Roger Foley, and we just heard Senator Dalphond speak of him. Unfortunately and sadly, we heard so many similar stories that highlight the inadequacy of our medical care system. If not addressed, I fear MAID may become a convenient alternative to inadequate care.

In addition to our lagging medical care system, a disturbing reality was brought to our attention at the Legal Committee — ableism. A growing trend of ableist thinking has contributed to the expansion of MAID. Ableism has become so pervasive in society that many do not recognize it or acknowledge it as a concern. Thus, ableism is still embedded in our social structure. We need to identify it and work systematically to eliminate it.

If we are determined to go down the road of making medical assistance in dying readily accessible to those whose death is not reasonably foreseeable, then the least we can do is to prevent primary caregivers and medical professionals from initiating this conversation.

The will to live is inherently built within all of us. In our moment of weakness, we rely on our loved ones and primary care providers for guidance. We also trust medical professionals to improve our quality of life and longevity.

Despite the limited amount of time spent with a doctor discussing one’s medical condition, a significant power differential exists. The impact of this relationship can induce involuntary decisions, especially during moments of weakness.

The power imbalance between a doctor and a patient diminishes the autonomy of the patient. Additionally, not all medical professionals are equal. We have heard stories from patients who were coerced into MAID before alternative medical measures were exhausted.

Also, we should not rely on the assumption that every health professional abides by the ethical and moral standards that are expected of them. If we are aiming to prevent, or at the very least minimize error and abuse while protecting the autonomy of our most vulnerable, then this amendment serves this purpose. Thank you.

Honourable senators, I rise today to speak on Senator Plett’s amendment to Bill C-7. I, too, am concerned about where this debate is going. It is not going in the direction that First Nations and the disability community want it to go.

I’ve worked on reserve as a health professional for over 30 years. In January 2021, I went to my home reserve to provide service at a dental clinic. On my travel there, I spoke to many nurses and doctors regarding MAID. Many were unaware of this bill, just as they were unaware of Bill C-14.

How, then, can senators evaluate the level of capacity assessment work that will be required? How can they assess it on behalf of medical professionals? It’s not for senators to determine and decide this for themselves. This is a determination to be made by the medical professionals. Moreover, it’s not only the medical professionals from whom people seek advice. They access information from the internet and other questionable sources. We are placing health professionals in a very precarious position without their informed consent, and patients likewise.

It has been stated that there exists the issue of ensuring an appropriate number of health professionals who provide care, namely, the doctors and nurses. When you look at safeguards, there is difficulty with ensuring that First Nations in remote communities have a single medical doctor, let alone two. The medical doctors and nurse practitioners come into the communities for two days every other week and they rotate. The nurses are the main health professionals and they are rotated through the communities from different areas of Canada and through different contracts.

To be able to have a conversation with patients regarding MAID, you need to have trust in your health care provider who understands the historical context of oppression. This takes years to establish and is especially true in First Nations communities. The health professional has to understand the language of the patient, and many don’t. Under the current system, this is impossible. Many patients are unable to write, let alone fully understand the nuances on concepts of MAID.

Ethics is an area that cannot be regulated by law. You either have it or you don’t. It’s not something you bring to the table and say: We’re going to practice ethics now. In my previous management position, I saw health professionals flying under the radar with their codes of conduct. The problem of oversight by regulatory bodies on self-regulating groups is inadequate and there is research with this.

Professional obligation is not always practiced, especially when many doctors are told to give 10-minute appointments and only four appointments per year. This is the reality in First Nations communities today. I know because I have raised that with hospitals. Once again, we hit the gap that is created by the interjurisdictional problem that First Nations have experienced through other laws passed by the Senate. In this situation, it places patients and health professionals in a gap that sees no resolution.

We have heard from people whose voices need to be heard. As a medical doctor wrote to me this week:

We spend a lot of time and energy working toward suicide prevention. However, now it seems we are sending a message to disabled and dying Canadians that says we agree with you, your life isn’t worth living. So we won’t try to stop you from killing yourself. Instead, we will help you end your life. Why is access to MAID a right that every Canadian should have to the point that doctors are being threatened against their consciences to provide access to it? However, we don’t put that same energy into ensuring everyone has access to palliative care or mental health services. Most people don’t actually choose MAID because of inadequate pain control. Most choose MAID due to fear of losing autonomy and because they aren’t able to engage in activities they find enjoyable due to loss of dignity and feeling like a burden on family.

These are primarily mental health issues that shouldn’t be solved by helping someone commit suicide. These burdensome fears can be lightened by coming alongside patients to support them, advocate for them, encourage them and help them to shift their focus. I encourage you to look at the research on dignity therapy by Harvey Chochinov, which speaks to this.

Generally, a desire to die is a cry for help and is transient. If we loosen the safeguards on criteria, we will be losing too many people who, with a little support, could have gone on to enjoy fulfilling lives. MAID unfortunately does not just impact the person who chooses it but also has wide-reaching effects for the person’s family, friends and their community.

I know that this is not an easy issue but I implore you, please do not continue to expand criteria for MAID or loosen the safeguards already in place. I know I speak on behalf of many of my patients, family friends who feel the same way. Thank you.

Honourable senators, I rise today to speak to the proposed amendment as a physician and teacher of physicians. Let me begin by saying that I respectfully oppose.

In my opinion, it attacks the most fundamental aspect of the delivery of health care — that inviolate and confidential space that is the communication between the person who suffers and seeks care and the person who provides that care. This is a space of respect, compassion and trust. We interfere with that space not only at our peril by criminalizing it, but with the possibility of violating it for every Canadian who finds themselves in a position of intolerable suffering. This space should not be invaded by an amendment to the Criminal Code that threatens clinicians with jail time of two years less a day if they do not comply.

The meaning of the word “patient” in the English language is “one who suffers.” The role of the health care provider vis-à-vis the suffering has included and continues to include one which promotes comfort and shares with the patient what remedies might be available to them while respecting the autonomy of the patient.

This does not mean that the clinician should impose their own values. This does not mean that the clinician should bully or otherwise induce a patient to accept a remedy that the patient does not wish. This does mean, however, that the clinician should not hide, conceal or neglect to inform the patient about the range of remedies that they could consider as a potential intervention to alleviate suffering.

It is incumbent on a clinician to discuss the pros and cons of each potential remedy with their patient. The clinician must acknowledge and accept the patient’s suffering, realizing it isn’t a personal experience and it is not for them to judge, invalidate or negate.

When the patient’s suffering is intolerable and the patient has made this known to the clinician, it is then incumbent on the clinician to respectfully inform their patient of the options available that could be considered for relief of that suffering. In Canada, in 2021, this may include MAID. This is the principle of patient-centred care. Patient-centred care runs in direct contradiction to historic practices founded on paternalism, where the clinician knows what is best for the patient and where the clinician’s values define what is best, even if the patient does not share those values.

On a practical level, this amendment will harm patients who are experiencing intolerable suffering and do not know that MAID is available. Let me be clear: This does not mean that they will choose or receive MAID, it means that they will get information about MAID.

We know that the clinician-patient relationship is characterized by a power imbalance. A clinician should never attempt to coerce a patient to accept an intervention that is not acceptable, but neither should they hide information from their patient just because they disagree with that intervention. It is not for the clinician to choose which intervention the patient could consider. It is incumbent on the clinician not to deny information that the patient needs to have in order to make that choice.

This power imbalance can be far-reaching. In addition to patients who experience intolerable suffering but do not know about MAID, there are those who may feel they will be abandoned, stigmatized or shamed by their clinician if they ask about something that they think their clinician objects to. This will effectively deny them the exercise of their right to consider MAID as an option.

This amendment would make punishable by a summary offence a clinician respecting the patient’s constitutional right to receive information from their trusted health care provider that they could consider in terms of their own decision making. We’re not talking about a clinician providing MAID here. This is the issue of a clinician respecting the right of a patient to information.

This amendment can put an onerous and unnecessary burden on the clinician. What counts as requested? Does the exception to criminal liability only apply if the patient says explicitly, “Give me information on MAID?” What if the patient says, “I’m suffering intolerably. Is there anything we have not yet discussed that I could consider as a means to alleviate this terrible situation?”

In short, this amendment raises the spectre of jail time for ethically practising providers and turns the contemporary practice of patient-centred care on its historical head. It promotes a paternalistic “I know what is best for you” perspective. In doing so, it denies persons with intolerable suffering equality of access to legitimate and legally recognized interventions that they could consider should they wish to do so.

Please let us not force patients to accept what we think they should know about or what we think they should be kept in the dark about. Please vote against this amendment.

Thank you, meegwetch.

Honourable senators, I would like to share my reasons for voting against this amendment. I believe that the way the amendment is drafted is too broad. “Provides information” is far too vague. When it says, “provides information on medical assistance in dying to a person who has a grievous and irremediable medical condition” or “provides information . . . to a person,” it does not specify the context in which that information would be provided. For example, in a seniors’ residence, there is a community group of residents that organizes information sessions on medical assistance in dying. Could there be people in attendance who suffer from grievous and irremediable medical conditions? Maybe they are not experiencing intolerable suffering. I think the amendment is far too vague. Let’s not forget the criminal law context. This amendment runs the risk of short-circuiting the real effort being made by the physicians’ colleges in each province to enforce ethical standards.

I will conclude by saying that the power dynamic between patient and physician does exist; there really is a power dynamic. It has evolved, and let’s hope it continues to evolve. However, as patients, our expectation today is that a physician who can’t heal us will inform us of all existing reasonable means to ease our suffering. I don’t think we can presume that patients know the full range or details of these means. Thank you.

Senator Miville-Dechêne, I see that your virtual hand is raised. Do you wish to debate the amendment?

I wanted to come back to one part of the amendment presented in Senator Plett’s speech. I believe he referred to the law passed by Victoria, Australia, on medical assistance in dying. He stated that this law prohibits a physician from starting the conversation on MAID, and he is right on that point.

However, like Senator Dupuis, I want to look at the details of what the law says. I will therefore quote part of the Victoria law. For a physician to initiate discussion about medical assistance in dying with their patient:

. . . is to be regarded as unprofessional conduct within the meaning and for the purposes of the Health Practitioner Regulation National Law.

However, this law is certainly not in the Criminal Code. It is the equivalent of a professional regulation that would be found in provincial legislation here in Canada.

I would like to close by saying that, like others, I find it very difficult to imagine that a doctor could start this conversation. I understand that circumstances can vary, and I think it is difficult to shed light on these kinds of private conversations and, especially, to criminalize this kind of conduct. However, I have a hard time grasping that a doctor could start this conversation. This must happen only in very, very rare cases. Thank you.

Are honourable senators ready for the question?

All those opposed to the motion in amendment will 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.”

In my opinion, the “nays” have it.

We will have a 15‑minute bell. The vote will take place at 4:11.

Call in the senators.

Your Honour, I would like a moment to explain my vote.

Go ahead, Senator Manning.

I decided to abstain from the vote as I have done in previous votes. I don’t believe in medical assistance in dying, period. I have some serious concerns with it, and that’s why I voted the way I did. Thank you.

Thank you. Resuming debate.