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) Every person who compels another person to provide or facilitate the provision of medical assistance in dying is guilty of an offence punishable on summary conviction.

(2) For the purposes of subsection (1), a person who provides information on medical assistance in dying to a person who requests it does not facilitate the provision of medical assistance in dying.”.

Thank you, honourable senators.

Thank you, Senator Plett, for your amendment. I want to begin just by acknowledging the deep conviction that you bring to this issue, how important it is to you. I respect that enormously.

The issue of access to MAID raises complicated issues that engage competing constitutional rights and interests, and the job of legislators — our job as senators — is to strike the appropriate balance between those competing rights in the best interests of Canadians. There is a constitutional right of persons suffering intolerably from irremediable medical conditions to have access to MAID, a right that, as Senator Dupuis correctly noted, is rooted in a long series of Supreme Court decisions focused on the relationship between the autonomy of persons and the state’s intervention in people’s lives through criminal law. There is, of course, also the constitutionally guaranteed freedom of conscience, which is a pillar of our liberal democratic society.

The amendment before us is presented as a means to better protect the conscience rights of those health professionals who do not wish to participate on grounds of conscience in their patients’ request for MAID. Colleagues, the amendment is not necessary to achieve that purpose, nor is it desirable in law or policy, so I will take the time I have to explain why I cannot support it.

The amendment is unnecessary because the current law respects the personal convictions of health care professionals to the degree that is appropriate and does not compel participation in medical assistance in dying and Bill C-7 does not change that. The Criminal Code is clear in section 241.2(9):

For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.

Moreover, section 2 of the Canadian Charter of Rights and Freedoms, which includes the guarantee of freedom of conscience, protects individuals from being compelled to act contrary to their conscience. I’ll return to the Charter in a moment.

Of course, the amendment does more than this. It makes it a criminal offence to facilitate the provision of MAID. Until I looked into this, I wasn’t sure exactly what that meant. But if you read the letters, as I have, that we have been receiving recently, and, of course, in the testimony of witnesses to which Senator Plett refers and Senator Plett’s speech, it is clear that what this refers to is referrals. This amendment would criminalize referrals that are required by the regulatory bodies in some provinces.

So what would this mean in practical terms? We know the regulation of health care is within the exclusive legislation jurisdiction of the provinces, who have designated regulatory authority to the professional bodies that oversee the health care professions. Some regulatory bodies — Senator Plett mentioned a number of them — do impose a duty to refer on their members. This, as colleagues know from debates and those who followed the testimony, was the subject of a court challenge in Ontario about which we heard testimony from Professor Downie from Dalhousie University. In a lengthy and very comprehensive decision, the Ontario Court of Appeal held that a duty of referral does not infringe upon the conscience rights that are protected by the Canadian Charter of Rights and Freedoms. The court was of the view that the law struck an appropriate balance between the competing constitutional rights and government interests.

Bill C-7 doesn’t change this, but this amendment would. It would limit the constitutional right of a patient seeking MAID to be referred to a health professional who is willing to assist them, and it would limit the ability of provinces to legislate and regulatory bodies under their jurisdiction to craft rules that they see appropriate for the regulation of the profession and the public that the profession serves.

This leads me to an additional problem, which I’m tempted to say is the broader problem with this amendment: Because it reaches so deeply into the area of provincial jurisdiction, it is, in pith and substance, a law that regulates health care providers. Can this be justified as a constitutional matter as a proper exercise of the criminal law power? It’s not very obvious that it can. For a law to be the valid exercise of a criminal law power — Parliament’s power to legislate a criminal law — it must serve a valid criminal law purpose as set out in innumerable cases which I will not cite here.

But the case law generally suggests that for a law to be valid under the criminal law power, it must be directed at some social harm sufficiently important to justify the imposition of criminal sanctions, especially when the law is aimed at the core of what is exclusive provincial jurisdiction— and here, it’s not only over health, but it’s over the professions and, indeed, it’s over employment.

We have heard no evidence of practitioners being compelled to provide MAID against their will. We heard of objections to having to refer patients to other professionals, a requirement that was upheld by Ontario’s highest court as consistent with the Charter.

Now, if provinces where the regulatory bodies under their jurisdiction chose or choose not to require health care professionals to refer patients to others for MAID assessment, they are free to do so, subject, of course, to those rules respecting the constitutional rights of persons to have access to MAID — balancing of rights. But in the absence of tangible evidence of real social harm —

I’m sorry, but your time has expired.

Could I start it after the break?

Honourable senators, do we have leave to see that it is 6:00 and that we take the one-hour break and that we resume our sitting at 7:00?

Thank you.