Moved:

That, in relation to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), the Senate:

(a)do not insist on its amendments 1(a)(i), 1(a)(iii), 1(b) and 1(c), with which the House of Commons has disagreed;

(b)agree to the amendments made by the House of Commons to Senate amendment 2;

(c)agree to the amendment made by the House of Commons in consequence of Senate amendments 1(a)(ii) and 3; and

(d)agree to the amendments made by the House of Commons to Senate amendment 3; and

That a message be sent to the House of Commons to acquaint that house accordingly.

He said: Honourable senators, I rise today to speak to the message from the other place in response to our amendments to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). As you would expect, I am asking you to accept the message, and here is why.

When I spoke to the bill on second reading, I told you that the government was open to considering any constructive amendments that were consistent with the objectives of the bill. The ministers who appeared at committee said the same thing. Some expressed skepticism, both at committee and in debate, but on any fair reading of this message, I believe that I have kept my promise to you.

Honourable senators, some in the other place have unfairly questioned the basic legitimacy of our work on this legislation. However, as this message makes clear, it is the government’s view that the Senate has appropriately fulfilled its constitutional role as an independent body of sober second thought by complementing the work of our elected colleagues.

I would suggest that the process that has unfolded to date represents the very best of the interaction and legislative dialogue that is possible between the two houses of Parliament. I would go even further to say that it is an example of the Parliament of Canada at its very best, and I say this as one who is not prone to hyperbole. For the government of the day to not only accept but to build upon Senate amendments and to have that passed in the other place by a minority Parliament is an achievement that is as significant as it is historically quite rare.

We in the Senate discharged our constitutional responsibilities with distinction. We studied the bill carefully, debated it fully, amended it as we judged appropriate and, supported by a strong majority in this chamber, we proposed the bill, as amended, to the other place for their consideration.

The government has not simply paid close attention to our amendments in good faith; it has built upon them. The work we did in this chamber — the research, the thought, the attention paid to witnesses and to each other — provided the foundation for the message we are debating. On behalf of the Government of Canada, I want to thank you all for your contribution and work on this important bill.

I know that some of you may be disappointed with the results in some respects — some because certain amendments were not passed in this chamber, and others because certain amendments were passed here and accepted in the other place. But that is behind us now. The Senate did its job in considering the bill and amending it as it saw fit, and our job now is to consider the message that the House has sent us in response to the Senate amendments. I believe in this respect that the message is very much worthy of our support.

The process that culminated in the message before us is an extraordinary example of thoughtful and meaningful policy development by both houses of Parliament and one that demonstrates a high degree of mutual respect between our two houses.

The bill began as a response to a court ruling and was passed in the other place by a significant majority of members from all political parties. The Senate fulfilled its role by proposing changes to the bill designed with the constitutional rights of those suffering intolerably in mind. The message we received from the other place is a respectful and thoughtful response to the contribution of the Senate.

The other place has used the Senate’s amendments as a bedrock to build upon so that Bill C-7 could be in the best form possible upon receiving Royal Assent, with a clear plan for moving ahead on the big outstanding issues.

One might even be tempted to say that the house has exercised its own sober second thought on the Senate amendments so that we may now consider a version of Bill C-7 that is a joint product of both chambers with a plan for MPs and senators to move forward together with more important work in the very near future.

The message responds to the Canadian experience to date with medical assistance in dying, respects the Charter right to freedom and autonomy and provides for further in-depth study on issues that were hotly debated in both chambers and which mattered greatly to all Canadians.

All told, the message reflects a fair and principled compromise for the final iteration of Bill C-7.

The original MAID bill, Bill C-14, called on Parliament to conduct a review at the five-year mark. COVID-19 and emergency legislation to deal with the pandemic got in the way of setting up this review process by the June 2020 mark.

The government is building upon the amendment put forward by Senator Tannas and Senator Boniface to initiate that process now. The Senate amendment was not accepted as written; instead, it was expanded. Moreover, while the committee’s mandate will be the study of important issues such as advance directives, mature minors, palliative care, mental illness and the protection of Canadians with disabilities, the list is not exhaustive. Members can take on whatever subjects flow from their work.

The joint committee review will begin immediately within 30 days of Bill C-7 receiving Royal Assent and the joint committee will report one year afterward.

The government also accepted the amendment put forward by Senator Kutcher for a sunset period relating to the exclusion of access to MAID for those whose sole underlying condition is a mental illness.

The government extended the time frame to 24 months from Senator Kutcher’s 18 months so that the issue can be properly studied by experts. This is not to delay the process. Rather, a new clause was added to the amendment for the Minister of Justice and Minister of Health to initiate an independent review on mental illness in the form of an expert panel. The panel will study the issue of mental illness in MAID during the first 12 months of the sunset period. It will study and analyze the suggested protocols, guidelines and protections for MAID requests from patients with mental illness as their sole condition for assessment.

This group of experts would then make their recommendations to the government and these recommendations would be tabled in Parliament.

The government would then have an additional 12 months to consider what safeguards should be established and to develop the necessary legislation surrounding mental illness in MAID. The government will then collaborate with provincial and territorial health authorities to ensure a consistent pan-Canadian approach.

Honourable senators, 24 months is a reasonable amount of time for these steps. The expert panel will have the time to study the complex issues associated with MAID in cases of mental illness, including the issues of assessing capacity, the trajectory of the illness and access to mental health care. The Association des médecins psychiatres du Québec and the Council of Canadian Academies have already done a great deal of work on this issue in their 2018 reports on MAID in cases of mental illness. These reports are valuable resources on this matter, with information that the expert panel will likely take into consideration in its recommendations. This is another example of how the Senate’s amendment was strengthened and improved with the inclusion of expert panels and will serve as a foundation for the government’s proposed policies and legislation.

Allow me to expand on this. Although we could let the joint parliamentary committee responsible for the overall study look at the safeguards, protocols and guidelines for MAID and mental illness, an expert panel could only contribute to the process.

Witnesses, both those who opposed MAID on the basis of mental illness and those who believe it can and should be permitted, have warned us not to expect a short-term consensus among practitioners on whether or not MAID can be safely provided in cases where a mental illness is the sole underlying factor.

It is also unlikely that new evidence would become available in the short term that would definitively resolve the issue one way or the other. A panel of experts may not answer this question conclusively, but it can be given a specific mandate to examine all of the evidence of the work to date and make specific recommendations about how to make MAID for mental illness as safe as possible, given the current state of knowledge.

Importantly, an expert panel — as opposed to the parliamentary committee — will work independently of the constraints in Parliament’s schedule. Neither will it be constrained by procedural rules limited by the parliamentary calendar nor by the time limitations that members of parliamentary committees must contend with when hearing from witnesses.

Requiring the expert panel to submit its report within 12 months, in conjunction with the amendment extending the sunset period to 24 months, would leave 12 months for the government to develop legislation incorporating the recommended safeguards and for parliamentarians to study and enact the proposed legislation. This, colleagues, would allow adequate time for the parliamentary process to unfold.

While the amendment put forward by Senator Dalphond, which would have introduced a definition of mental illness into the Criminal Code so as to exclude neurocognitive conditions, was not accepted by the government, the government recognized the importance of the issue raised by the amendment. Accordingly, this is a topic to be studied further by the expert panel and to be considered during the parliamentary review.

The message makes it clear that what constitutes a mental illness in the MAID context is a matter that can and will be addressed.

The amendment put forward by Senator Wallin allowing for advance directives also was not accepted by the other place. However, the message in response makes it clear that this important subject will be part of the joint parliamentary review. The review could recommend safeguards for both patients and practitioners in order to move forward on an issue vitally important to a majority of Canadians when looking at the MAID regime.

Senator Wallin, I would be remiss if I did not pay tribute to your work and to your advocacy on this issue. As Government Representative in the Senate, I wish to explain that while this amendment was not supported by the House, that should in no way be viewed as the end of the road. In fact, your amendment and advocacy were instrumental in the House’s decision to accept Senator Tannas’s proposal to establish a joint committee within 30 days of Royal Assent with a broad mandate and a firm plan for moving forward.

In my view, the House’s endorsement of a joint review is a tangible, constructive and meaningful contribution of the Canadian Senators Group to the parliamentary process on Bill C-7 and one for which the government is thankful.

Senator Jaffer’s amendment concerning data collection was accepted and then expanded to include persons with disabilities. The message also clarifies the data collection provision by adding the words “Indigenous identity” so as to capture as many groups as possible.

Senator Jaffer’s amendment and its expansion will ensure that the monitoring regime will produce a more complete picture of MAID in Canada. As we all know, good data is what grounds better policy.

One of the main issues raised during our study of Bill C-7 was the importance of gathering and analyzing data and the lack of that information thus far. That data will be crucial to the transparency of and public trust in a regime that permits MAID for Canadians who are not otherwise approaching their natural death.

Let me conclude where I began. I know that many of you still have reservations about the expansion of medical assistance in dying to those whose death is not reasonably foreseeable. I understand and I respect your position. But the Senate has spoken, and so now has the other place on two occasions.

The message before us represents an historic collaboration between our two houses of Parliament. The government could have been dismissive of Senate amendments; it was not. It could have discounted the input from this chamber out of hand; it did not.

Quite the opposite: The government studied our amendments, recognized their value and built on them to provide a strong foundation for the development of public policy going forward on matters of critical importance, not only to us as senators but to all Canadians. The message from the other place was more than simply responsive to the Senate; it demonstrates a deep respect for our contribution and for our work as parliamentarians.

Honourable senators, the Senate has discharged its constitutional role with sensitivity and with distinction. We’ve done our job well, and it’s now time for us to demonstrate the same respect to the other place that they have shown to us and to pass the Bill C-7 message. Canada’s MAID regime must conform with the Quebec Superior Court decision mandating the constitutional rights for those Canadians who have been waiting and suffering while Parliament concluded its business.

We have reached this point after a long and difficult debate, one that engaged and engages our deepest personal convictions. But we did the job we have been summoned to do. In my humble opinion, this is the work that the framers of our Constitution had in mind for us as they debated the parameters of a future upper chamber for Canada in a magnificent building overlooking the St. Lawrence River where the Château Frontenac stands today, and in a senatorial division that I proudly represent in this place.

I’m proud of the work that we’ve accomplished together, and I’m proud to represent a government that believes in the legislative value of a more independent and less partisan Senate. I’m also very proud to work with all of you in this chamber in the service of Canadians.

Please join me in voting to accept this message from the other place. Thank you for your kind attention.

Senator Gold, would you take a question?

Of course.

Thank you for your thoughtful and thorough exposition of the message from the House of Commons. I have a set of questions on the joint committee that has been proposed and I will ask all three since they are closely related. The first is whether you believe there should be constraints on the ability of the committee to meet in a virtual, hybrid or all-person format. The second is whether you see any obstacles to this committee meeting, even if either the house or the Senate is sitting. And the third related question is whether this committee will cease to exist in the event of prorogation or an election.

Thank you for those questions. I don’t have definitive answers for you, senator. It seems to me how this committee meets will be something that will be worked out jointly between representatives in the Senate and in the other place, as will an understanding both between the Senate and the chamber and the groups within both chambers as to how and when they will sit.

As for the constitution of the committee and how it might continue its work, again, that’s a matter that certainly will be clarified once the groups get together and figure out the terms of reference.

Senator Gold, the Senate sunset clause amendment left the subject matter of MAID for mental illness much more open-ended. As such, some senators may have voted for the Senate amendment believing that it was open for this expert panel to determine that MAID for mental illness should not occur if the evidence leads that way. Yet your government’s amendment allowing MAID for mental illness makes it crystal clear that this expert panel will not have the power to determine whether to allow MAID for mental illness, only how to allow MAID for mental illness.

Why won’t your government allow this expert panel to truly exercise sober second thought on such a critical issue for so many Canadians suffering with mental illness?

Thank you for the question, senator. The only change that the House effected to Senator Kutcher’s amendment was to extend the period in his amendment from 18 to 24 months. The introduction of the expert panel was to provide greater and more fulsome input to the parliamentary process — the legislative process — that’s contemplated in the 24-month period. I might add as well that complements the parliamentary review that is also going to be undertaken 30 days after Royal Assent.

The message that was just read indicates this about the independent review: It’s very prescribed and it does not contain any sort of open-ended manner. It says:

The Minister of Justice and the Minister of Health must cause an independent review to be carried out by experts respecting recommended protocols, guidance and safeguards to apply to requests made for medical assistance in dying by persons who have a mental illness.

That does not allow these experts to determine whether MAID should be made available for mental illness. Do you disagree with that? Do you believe that it is within their power to determine whether MAID should be made available for mental illness or would you agree with me that it is simply a how-to manual?

I think the idea behind the expert panel is to take advantage of and, indeed, to structure inquiry into what is currently a clear lack of consensus amongst professionals as to what standards ought to be applied. As I mentioned in my speech — not only with regard to safeguards but with regard to the trajectory of different conditions that can be lumped under the heading of mental illness — it remains ultimately the parliamentary responsibility to legislate, depending on the views that parliamentarians arrive at, benefiting, as they will, from the expert opinion.

Senator Gold, this is a critical issue and we need a clear answer on this. We need to know if it’s the position of the Government of Canada that this expert panel is able to determine whether MAID is available for mental illness or only how. That is a critical issue that this Senate will need to consider when determining whether or not to accept this particular amendment.

Thank you for your question and your follow-up. The message speaks for itself. The idea behind the message is for experts to provide the benefit of their expertise and feed it into the parliamentary process. It’s the position of this government that it is a major step forward in ensuring that the decisions that parliamentarians will have to make, whether in the other place or in this house, are as fully informed as possible.

I think the questions from my colleagues Senator Woo and Senator Batters cause me to rise to just get some clarity, because the government has had five years to do a review and they failed, and yet these are tighter timelines. I’m really interested in the assurances that we have that any of these lofty, very big goals will be achieved by a government who failed to even meet a five-year timeline.

Thank you for your question, senator. I think it’s important to separate two issues. I have already explained the fact that the parliamentary review did not happen as hoped, and it was a matter of much debate in this chamber and in committee. Happily, the amendment that was proposed by Senator Tannas and Senator Boniface was accepted and, indeed, expanded and broadened by the government and the House as reflected in this message so that the parliamentary review on all aspects surrounding medical assistance in dying, including access or challenges for providing proper and full access to palliative care and all the things that we’ve talked about in debate will be looked at and looked at immediately. So it goes even beyond what Bill C-14 had contemplated.

The sunset clause is a separate matter. The Senate judged it appropriate to propose an amendment out of a concern for the constitutionality of the exclusion. The government took that seriously. Though it remains of the view that the exclusion is constitutional, for a number of reasons the government has decided that it would be appropriate to allow a two-year period of study, review and ultimately deliberation by Parliament, so that the decision of what the system should be, for those whose sole underlying condition is mental illness, is properly put into place, and that’s the sunset clause.

I’m asking this chamber to accept the reasonableness of the government’s response to the Senate amendments. It’s important in experience, and all senators will appreciate that we are now debating the message; our task now is not to relitigate Bill C-7 or medical assistance in dying or all the issues about which we’re no less passionate and we feel no less strongly today, just because we’re at this stage of the legislative process. However, we are now at this stage of the legislative process.

As I’ve said before, honourable colleagues, I think that the Senate proposed, the government listened and the House responded in a very respectful way. That’s why I believe that we’ve done our job, and our job now is to accept the will of the elected members of Parliament and accept the message.

I agree; we’re not here to relitigate. We’re not doing that. We’re looking for assurances. A two-year timeline is very short when you look at the five-year timeline that wasn’t met, and the fact that so much can happen in two years: interruptions, prorogations, elections. I think the questions Senator Woo asked were important ones to give us assurance before we agree to this message, because we need to have clarity. The question that Senator Batters asked, in terms of what does that two-year process look like; it’s very different when we’re saying we’re going to do that, and we’re going to create a regime that will include others that weren’t eligible when the original regime was designed for a narrow group of individuals. We had experts who told us we must look carefully at every aspect.

Two years is not a lot of time, senator. I’m looking for assurances from you, as the government leader.

I appreciate that and I’ll try to answer better. I hope it’s reassuring. Again, I draw the distinction. Senator Woo’s question was about the parliamentary review and how that would work in light of — well, that was one part of it — how it would meet, and would it meet when the house is or isn’t sitting. All those things will be worked out in an appropriate way by the two chambers.

The sunset clause is a different matter. If we accept this message, this is the law. There is now a two-year period, at the end of which the exclusion of mental illness will lapse.

The government is of the opinion that this is an adequate period of time — 18 months was thought to be too little — that 24 months is an adequate period of time to get the benefit of the experts’ recommendations, to consider them and to legislate accordingly, so that there are proper safeguards in place — both, obviously, for those who are seeking access to MAID but also for the practitioners and others supporting them in their suffering.

As I pointed out, one of the advantages of using the experts is that they are not bound by the parliamentary calendar. Regardless of what happens in the coming year, whether there is an election or prorogation, those experts will continue their work. At such time as they complete their work, parliamentarians will be seized with the issue, because it’s in the bill and it’s independent of an election or prorogation.

I don’t know if that is sufficient reassurance, senator, but that’s why the government believes that 24 months is a prudent and appropriate way to proceed.

Senator Gold, I agree that we don’t want to relitigate Bill C-7. I could ask you a number of questions about your speech, but I won’t. I will have my opportunity to speak on the bill, and I may find a way of pointing out a few of the inconsistencies in your speech when I do that.

The questions that have been posed about this committee and the timelines are very real, Senator Gold. I don’t think there is anyone in this chamber who doesn’t expect that we’re having an election this spring. In all likelihood, we will have prorogation. We may have prorogation before this committee is struck.

Yes, the senators will be here. It has been said many times: What are the best two words you hear as a senator after an election? It is “Good morning, senator.” The members of the House of Commons don’t have that, and they may not even be back. Certainly, when an election is called, they are gone until after the election.

Then we’ll have a government, and many of us hope that the 6 million Canadians who voted for the Conservatives the last time will add another million to it this time and we’ll have a different government. However, even if we don’t, Senator Gold, after prorogation and an election, there will be a significant period of time — I would suggest maybe late September or October — before the government comes back with a Speech from the Throne and then probably adjourns until after Christmas.

We are losing a third of those two years before this committee may be struck. What plan does the government have? Do we have assurance from the government that this committee will be struck before prorogation, and do we have assurance from the government that this committee will be able to work? Because once prorogation is here, I don’t think we have to ask the question; this committee is non-existent.

There is an old joke saying that Jews always answer a question with a question. It wasn’t clear to me from your question, senator, whether we’re talking about the parliamentary review or the expert panel in the context of the sunset clause.

I was talking about the expert panel.

Thank you for that. The expert panel can be constituted and can continue its work whether or not Parliament is prorogued and whether or not there is an election. The panel has 12 months to report. I don’t know, and none of us know, when an election will be held. However, it’s not an unreasonable assumption that the panel will continue its work. If there is an election within the year and a new Parliament begins, there will be time for that new Parliament, one year hence or one year after Royal Assent, to have the benefits of the expert opinion and start its work as legislators.

Let me ask you to clarify that a little more. You are saying it’s not an unreasonable expectation that this committee will continue to work. When an election is called, MPs no longer have a job; they’re done until the election. How will this committee work? Because there won’t be a House of Commons contingent; there will be only a Senate contingent.

I thought that in your answer to my question, in response to your question, you were talking about the sunset clause, not the parliamentary review. The sunset clause contemplates an expert opinion — not of parliamentarians but of experts in the field working for the first 12 months — to report back to Parliament. That’s separate and apart from the joint review.

Colleagues, the frustration that many of us felt — because the parliamentary review that was contemplated in Bill C-14 did not happen at such time as the Truchon decision came down the pike and the legislation of Bill C-7 came before us — was palpable and very real. The government was criticized and pressed, and understandably so, for a commitment to launch the parliamentary review. But any parliamentary review would be subject to the same vagaries of prorogation and election as the one that is being contemplated in this message.

In that regard, nothing has changed. What is significant in this message is that the government has made a commitment not simply to do its own parliamentary review but a joint one with the Senate. This is what the Senate wanted, and the amendment that Senators Tannas and Boniface proposed.

In that regard, colleagues — again to return us to the message — the Senate proposed a procedure for a parliamentary review of the range of questions contemplated not only in Bill C-14 but that also arose in our deliberations on Bill C-7, notably concern for Canadians suffering from mental illness, disabilities more generally, the question of palliative care, and we’ll be acting in a timely fashion with a reasonable timeline.

It is hard to resist the comment that were the government to say “We’ll do a parliamentary review and we’ll report back in 5 or 10 years,” I think the government would be properly criticized. When the government says “We’re going to launch this within 30 days of Royal Assent and we’ll report back in a timely fashion,” I think that’s the responsible thing.

I hope I’m answering your question. There is a difference between the parliamentary review and the impact of an election, and the expert panel which would feed into the parliamentary process under the terms of the sunset clause.

Honourable senators, it is now six o’clock, and pursuant to rule 3-3(1) and the order adopted on October 27, 2020, I’m obliged to leave the chair until seven o’clock.