Criminal Code
Bill to Amend--Second Reading--Debate
December 16, 2020
Honourable senators, I rise today to add my voice to Bill C-7, a bill that seeks to expand the assisted suicide regime in Canada.
Colleagues, it is a rare opportunity to stand in either house of Parliament to debate legislation that determines the circumstances in which people live or die. I sincerely hope that each of us feels the weight of the decisions we make with respect to this bill, and I hope that no one will feel compelled to bow to the pressure that the government is putting on the Senate as a result of their self-imposed time crunch.
As many of you will remember, I actively participated in the debates on Bill C-14 and proposed amendments to enhance safeguards. I expressed then that I was opposed to any form of assisted suicide. However, our vote on Bill C-14 was not a vote to legalize assisted suicide. That decision was imposed upon Parliament by the Supreme Court of Canada. The vote on Bill C-14 was a vote on parameters and safeguards.
While there were many disagreements as we strove to strike the right balance, I have said many times that those debates were the most compassionate and respectful that I have been a part of in this chamber. There seemed to be an understanding that each of us was coming from a place of compassion, even when we disagreed fervently. Sadly, the debate on this bill took a negative turn in the House of Commons when Minister Lametti dismissed the expression of dissenting opinions as partisan filibustering and an out-of-control “religious right.” I am grateful that this chamber has demonstrated empathy and respect for one another’s opinions as we deliberate these difficult issues.
Today, colleagues, we are not here because of a Supreme Court of Canada ruling. We are here because of a Quebec Superior Court ruling, made in one province by one judge — not the Supreme Court, not even an appellate court. The Trudeau government made a highly unusual and, in fact, unprecedented decision not to defend its own legislation, not to appeal this decision, and to instead use this as an opportunity to broaden Canada’s assisted suicide regime far beyond the requirements as set out by Truchon.
However, I will defer to the esteemed legal scholars in this chamber on matters of constitutionality. We are fortunate to have the insights of Senators Carignan, Batters and Gold — Senator Gold gave a very passionate speech yesterday — as well as Senators Cotter and Dalphond, and Senator Pate yesterday, speaking as a lawyer. This is just to name a few, colleagues. There are many more.
Our respectful debate went a little off the rails on Monday night, when my good friend Senator Harder suggested — after not being able to defend his claims that Conservative MPs were filibustering — that my question was trying to distract from the constitutional issues with this bill. I am not sure why Senator Harder believes that I would be trying to distract this chamber from flaws in a Liberal government bill, however, I can assure you all that I am not. I have many serious concerns with this legislation, which I will outline, and I think people like Senator Harder and I should leave the constitutional analysis to the experts.
Prior to my participation in the committee hearings on Bill C-7, I knew of the shocking decision of the government to not defend its own legislation. I also knew that existing safeguards had been removed, seemingly without rationale, and certainly before Parliament has had a chance to conduct the five-year review on our existing regime.
I am happy that Senator Gold has suggested that we start such a review in the Senate, since the House clearly cannot get their act together. Personally, I was opposed to assisted suicide expansion of any sort, and still am, however, I had no idea how frighteningly flawed this legislation was until I listened to the 81 witnesses who testified over the course of the week. Throughout my entire time in the Senate, I do not believe we have ever had a bill with such widespread disapproval — both from experts and those most profoundly impacted.
Each day, colleagues, seemed to paint a grimmer picture of where we are and where we would end up if this bill is passed in its present form.
We heard from international experts that this legislation will, in fact, make Canada the most permissive assisted dying regime in the world. Dr. Trudo Lemmens, an international health law expert, told the committee that under this bill, unlike all other jurisdictions, assisted suicide will not be treated as a last-resort option. This concern was raised numerous times throughout the committee’s study.
Every other jurisdiction in the world requires that all treatment options be made available and explored first, for people who may have years or decades of life left. As Dr. Lemmens told the committee:
This alters health care providers’ professional and legal obligations related to the standard of care. Patients cannot insist that physicians actively provide something that violates the professional standard of care and that is not medically indicated. Making access to some interventions conditional on trying other conditions first is not unusual and is a most minimal requirement when the active intervention required from physicians results in death. By only requiring that people have to consider all options, the bill fails to provide the protection that takes into consideration the uniqueness of the health care provider-patient relationship, the key supportive role of providers and the radical nature of MAID.
Under this proposed legislation, doctors have warned us that we are placing assisted suicide as simply part of a range of good medical care options. Doctors may be required to introduce assisted suicide to patients alongside all other therapeutic options. However, this is not just another option. This is the final option. This, colleagues, is irreversible.
We were warned by some of the experts most familiar with international assisted suicide regimes to proceed with great caution, especially in the context of one of the most troubling clauses of Bill C-7.
In cases in which natural death has been deemed to be reasonably foreseeable, practitioners would now be allowed to provide assisted suicide through advance consent, with no requirement for final consent if the practitioner has deemed that the individual has lost such capacity. As an apparent attempt at a safeguard, the bill stipulates that in cases where the person demonstrates, “by words, sounds or gestures, refusal or resistance to the administration of the substance to cause their death,” the advance consent arrangement would be invalidated.
However, the bill also states:
For greater certainty, involuntary words, sounds or gestures made in response to contact do not constitute a demonstration of refusal or resistance for the purposes of paragraph (3.2)(c).
There is no way this clause can be interpreted as anything but highly subjective — and, in my view, dangerously so.
The committee heard about a case of a woman with dementia in the Netherlands. While not unconscious, she was deemed incapable of decision making. She was provided medication to make her sleepy. Then an injection was provided and she physically resisted. The family helped the doctor to hold the patient down. She was ultimately injected with the lethal substance and died. I find this deeply disturbing.
Witnesses expressed that if this advance consent practice is to be permitted in Canada, any physical resistance to the ending of a person’s life should put an immediate halt to the process.
Other jurisdictions have also sought to address the power imbalance that exists between physicians and patients by ensuring that all discussions about MAID are exclusively patient led. Dr. Ramona Coelho provided insight about the profound power and influence a physician has over a patient, especially a vulnerable patient with a lack of support, education or resources. It was described as a sacred trust for some populations. The mere mention of assisted suicide as an option to a vulnerable patient may be the only nudge they need.
We heard, colleagues, about Roger Foley, a man from London, Ontario, who has been diagnosed with a neurological disorder that limits his ability to move his arms and legs. While in the hospital for years, he repeatedly asked for help in finding adequate assisted home care. Instead, he was offered assisted suicide on at least four occasions by medical practitioners, when he demonstrated absolutely no interest in dying. He recorded one such incident which received widespread media attention. This incident even caught the attention of the UN Special Rapporteur on the rights of persons with disabilities, who ultimately wrote a sternly worded letter expressing great concern and strong recommendations.
Other jurisdictions have acknowledged this power imbalance and the risk of coercion that exists when physicians are offering assisted suicide to a vulnerable patient who has made no such request. Victoria, Australia, for example, enshrined the requirement into the legislation that discussion around assisted suicide must be patient led.
When I raised this with the Minister of Employment, Workforce Development and Disability Inclusion, she seemed as uncomfortable with this lack of protection as I am. She said she has grave concerns about the way Roger Foley was treated and offered that he is not alone. She said this conversation is not off the table.
When I asked if she would support an amendment to that effect, she said she would certainly be open to that. While I was pleased to hear that, I found it surprising that this amendment was in fact proposed in the other place at committee, and Liberal MPs had clearly received instructions to vote it down.
Colleagues, the idea that we would be opening this regime further and expanding assisted suicide to those with disabilities and chronic illness who are not approaching end of life before we have taken action to prevent coercion, such as in the case of Roger Foley, is preposterous.
Honourable senators, as you know, Bill C-7 expands access to assisted suicide to Canadians with disabilities who are not approaching end of life. The response from the disability community has been powerful and staggering and yet ignored by the government. Every single national disability organization in the country is opposed to this bill.
In fact, 72 organizations that serve Canadians with disabilities signed a public letter urging the government to appeal the Truchon decision. They gave several reasons why a failure to appeal would be disastrous for the disability community, including that the decision:
. . . may entrench stereotypes and exacerbate stigma for Canadians with disabilities, contributing to the adversity and oppression experienced by this vulnerable group.
As the executive vice-president of Inclusion Canada, Krista Carr said, “Our biggest fear has always been that having a disability would become an acceptable reason for state-provided suicide.” She continued, “Bill C-7 is our worst nightmare.”
The disability community is perplexed as to why the government would move forward with carving out one Charter-protected group, namely, those living with a disability, and offer them assisted suicide when they are not approaching end of life. They argue there are other disenfranchised groups that are discriminated against and also experience intolerable suffering. We know that suicide is more prevalent amongst those who experience systemic discrimination or societal devaluation, and thus prevention must be our primary focus.
Ms. Carr summed up the grave concerns of Canada’s disability community when she said:
Including disability as a condition warranting assisted suicide equates to declaring some lives not worth living — a historically horrific premise with consequences that should terrify us all and clearly terrifies the disability community, including their families.
We know that feelings of suicide are powerful. Yet, as suicide prevention experts said, these feelings are often not sustained.
Dr. Leonie Herx from the Canadian Society of Palliative Care Physicians told the committee:
Desire for death and requests for MAID are often expressions of grief, anger, loss and despair as a response to a devastating diagnosis or a change in condition.
This often results in a MAID consult, even before palliative care has been involved.
Dr. Harvey Chochinov’s published work in psychiatry and palliative care demonstrates that desire to die in the terminally ill fluctuates and often dissipates within two weeks. Colleagues, it would be irresponsible not to acknowledge that reality.
For example, David Shannon, an Ontario lawyer living with a disability, wrote about this bill in a column recently. He said when he was 18 years old, in his first year of university, he sustained a spinal cord injury in a rugby scrum that resulted in quadriplegia. It took him years to recover. He noted that while he was never suicidal, he knew many people in similar situations who were. He said if this proposed legislation was in place back then, he is sure that some doctor would have offered him the opportunity to die and his life would have been erased. He said:
Some good doctor would have gone to bed that night filled with smug righteousness, and sure she/he had done the right thing. I’m here to tell you this would have been a lie.
Colleagues, when the group most directly impacted by this legislation says, “this is our worst nightmare,” we have a problem and we need to listen.
I want to thank the disability community for their advocacy, and I want them to know that they have been heard.
As you know, colleagues, this legislation creates a two-track system with two sets of safeguards, depending on whether death is reasonably foreseeable or whether it is not reasonably foreseeable. There are more stringent safeguards in place when a patient is not approaching the end of life. However, this legislation pre-emptively removes safeguards that were in place under the existing regime. Of course, this is before we have had a five-year parliamentary review as stipulated in Bill C-14 and before there is sufficient data available to justify the elimination of any existing safeguard.
For example, the government has removed the 10-day reflection period in the current regime. This is absolutely unjustifiable. The rationale for reflection periods internationally, whether 10 days or 14 days, came from the renowned, published work of Dr. Harvey Chochinov, referenced earlier, who found that desire to die in the terminally ill fluctuates and often dissipates within two weeks.
When Minister Hajdu was asked about removing this safeguard she stated that often when the formal request is made, this is long after difficult conversations with families and physicians, and that when this decision is finally reached, waiting for an additional 10 days is unnecessarily cruel.
However, the minister is missing the point entirely. We all know that safeguards are not put in place for what is often the case or for the clear, clean-cut cases described by the minister. Safeguards are put in place for the exact opposite purpose — to prevent unnecessary and wrongful deaths in situations where there is a grey area or where an assessing physician may not be aware of the depressive suicidal ideations of the particular patient and whether those are fleeting. To completely remove any sort of reflection period is entirely irresponsible.
Dr. Harvey Schipper, professor of law and medicine and an expert on MAID, testified about the dangerous road we are on by moving too quickly and without evidence or understood experience down a pathway of immense societal consequence. I asked him about the removal of safeguards, and he said:
Well, I don’t think we have the evidence to remove any safeguards.
He noted that, at this point, we have the most trivial data. He continued:
Certainly taking out the waiting period is really, really foolish. It’s un-biological.
He also discussed the need to preserve the second independent witness, reminding the committee that we are talking about actively ending someone’s life.
Even former Attorney General Jody Wilson-Raybould expressed great concern with the government seemingly ignoring the instruction of the Supreme Court of Canada in the Carter decision, both with respect to stringent safeguards and the need for clear consent. The government has clearly abandoned these directives from the Supreme Court by pre-emptively eliminating the most important safeguard and by allowing final consent to be waived.
Colleagues, it should be noted that the removal of these safeguards had absolutely nothing to do with the Truchon decision. More alarmingly, the government proposes to remove these safeguards without any sufficient data to justify it.
With the elimination of safeguards and the radical broadening of Canada’s assisted suicide regime proposed in this bill, many physicians and practitioners are terrified by the lack of protection for them to legally opt out. Bill C-14 included an unenforceable clause that suggested no practitioner should have to participate in MAID against his or her will. However, we have seen, based on the provincial colleges’ interpretation, that this has offered little to no protection for physicians.
This was a common theme throughout the hearings. While some have tried to dismiss this issue as a solely religious concern, it is abundantly clear that this is not the case. Many physicians have ethical concerns with actively participating in an individual’s death, especially if they are of the professional opinion that there are other treatment options available. Now, with this being extended to Canadians with a disability who are not approaching end of life, many more physicians are concerned about being ethically and morally compromised.
The biggest misunderstanding in the conscience rights discussion is the idea that physicians should be forced to provide an effective referral. This is based on a misconception about what an effective referral actually is. As the Canadian Medical Association put it so aptly during our discussion on Bill C-14:
. . . a referral is effectively an endorsement of a procedure, and that is morally problematic for many practitioners.
Dr. Ramona Coelho noted the misunderstanding of the concept of referrals among some members of the committee. She explained that a referral is a doctor saying that something is good for their patient and that they are simply passing it on to a specialist to complete the care.
As mentioned earlier, with this legislation putting assisted suicide on an equal footing with other therapeutic treatment options, now more than ever physicians are asking for protection. For those worried about lack of access, please note that Alberta, British Columbia and Manitoba have already put in place robust self-referral mechanisms so that physicians can direct patients who require information about MAID to the appropriate resource. Therefore, there should be no duty whatsoever to refer.
Every doctor we have spoken to is more than willing to provide a phone number or a website so a patient can access the information they require. That is all these practitioners are asking for, colleagues.
We have heard from many who are planning to leave the country or stop practising medicine if this legislation passes as is. One way we can reduce the number of physicians leaving is if we protect them from having to participate in the process. When there is so much disagreement in the medical profession about the ethics of assisted suicide, this seems like a very reasonable ask in a pluralistic society and in the spirit of compromise.
The College of Physicians and Surgeons of Ontario has already jumped the gun by sending out a survey to physicians last week in anticipation of the new legislation. The survey asks for their input with incredibly biased, leading questions, such as: “Should patients be made aware of all of their options for end-of-life care?” or “Should a doctor impede access?”
Many physicians in Ontario are left wondering if this will later be used to reflect the widespread approval of doctors offering assisted suicide to patients, regardless of whether they asked for it or not. There is concern by doctors that this survey indicates that they are doubling down on the duty to provide effective referrals. Colleagues, this makes their simple ask for explicit conscience protections even more pressing.
Again, while some have tried to frame this as a religious freedom issue, that would be missing the point and only accounting for a portion of concerned practitioners. While we did hear this request from organizations representing a variety of faiths, we also heard from bioethicists, family care physicians, psychiatrists and palliative care physicians that a duty to refer against their professional judgment would pose overwhelming distress.
We heard from the Canadian Indigenous Nurses Association about the need for explicit conscience protections for Indigenous nurses and nurse practitioners. They want assurance that they will not have to participate if it is against their judgment or value system to do so. How can we possibly justify expanding this regime so radically without offering basic protection to our physicians and nurses?
Many Indigenous witnesses raised the concept of cultural safety. For example, Marilee Nowgesic, executive director of the Canadian Indigenous Nurses Association, told the committee that under the First Nations and Inuit health branch there are 672 nurses across Canada. The majority of these nurses are working in their home communities, small communities. In her words:
We know that this causes additional problems because then that nurse becomes marked, and that’s why I said there needs to be meaningful protection of the conscious rights of health care workers. Are they going to be punished because they didn’t execute their duty as a nurse? Or will they be punished by the community people for taking a life?
That is why we are trying to say put a pause on this situation until comprehensive consultation can be done.
On that note, colleagues, I hope the Indigenous voices in this chamber will participate in this discussion and offer their insight as to how we can strike a workable balance. This is a concern for many Indigenous practitioners and now, more than ever, we need to ensure the concept of cultural safety is a consideration.
Shamefully, the government did not engage in meaningful consultation with Indigenous peoples. Perhaps if they had, they would have had a better understanding of the serious concerns of the Indigenous communities prior to drafting this legislation. In fact, colleagues, the government did not consult whatsoever with Inuit or Métis, choosing to abandon their duty to consult on the most critical issue we or they will likely ever take part in or vote upon.
When I asked the four Indigenous groups who testified at committee whether, in their view, we must hit pause on this legislation, one of the witnesses said a soft “maybe” and the three of the four, without hesitation, an emphatic “yes, we need to hit pause.”
Perhaps the most common, overarching concern raised by witnesses over the course of our pre-study was that we are not offering most Canadians who qualify for assisted suicide a fair and honest choice between life and death, both in the context of supports for those living with disability or chronic illness and palliative care. In fact, by moving to broaden access to assisted suicide before we improve these systems, we are making it easier to die than to live.
We heard from the Canadian Society of Palliative Care Physicians that “the lack of access to palliative care in Canada is a national tragedy.” They cited a study from November 2020 that examined palliative care involvement in patients requesting assisted suicide and found it to be wholly inadequate. In this study, two thirds of patients had no community palliative care physician, and 40% had no palliative care involvement prior to requesting death. Without access to high-quality palliative care in a timely manner, patients who are suffering may believe that assisted suicide is their only option.
Colleagues, how can we justify rapidly and profoundly expanding access to assisted suicide before we have offered patients another option? It has been argued in this chamber that these things can happen in tandem. Sure they can, but we know they are not. This was argued by the same people asking for this bill to be passed by Friday. There will be no improvement in access to care for patients by the time this bill receives Royal Assent. It is outrageous and frankly indefensible to offer patients death before we are offering them an opportunity for a reasonable life.
If palliative care was deemed an essential service and adequately funded across the country, Canadians would be presented with a real choice between life and death. Instead, we are moving to make Canada the most radical regime in the world while we are supposed to take comfort in the fact that improving access to care remains a “top priority” for this government. Colleagues, I cannot stress enough how unethical and immoral it is to increase access to assisted suicide before we have guaranteed access to palliative care for any Canadian who requires it.
The committee heard about Canadians who have requested assisted suicide due to loneliness, depression, social deprivation and lack of supports needed for living. We know that COVID-19 has amplified these problems.
Dr. Catherine Frazee, in what I would say was the most heart-wrenching and distressing testimony of the entire study, similarly warned the committee against this proposed expansion, especially given our abysmal existing support systems. She referenced two cases of concern, among many, that have been identified under the current law and, as she put it, under this radically expanded new law.
Many senators did not have the opportunity to hear Dr. Frazee speak. Many of you did, so I’m sorry to repeat this for those of you who did. For those who didn’t, I will tell you this story for the first time. It’s a story of two men that Catherine Frazee talked about.
Archie Rolland was a man with ALS. He had care in a facility that worked well for him. His ALS was very advanced and he required specialized care. Against his will and without his agreement, he was transferred, for cost-saving reasons, to another facility where staff were not trained. For him, the impact was profound. With people untrained in how to care for him in his unique circumstances, he would be left without any means of communication, without any means of controlling the computer, which he used to correspond and communicate with people and to get help when he couldn’t breathe. His life became “a living hell.”
When his mother was there to assist him, he documented all of his suffering with this inadequate care. He pleaded for trained personnel like he had before. If he had not attracted the attention of a reporter from the Montreal Gazette who brought his story to light, we would have known nothing about his life or his death.
In the end, Archie Rolland said, “It’s not the ALS that’s killing me; it’s my fight for better care, for decent care.” So he chose MAID. As Dr. Frazee said:
In the current monitoring system we have, he simply shows up as someone who chose MAID, and who was indeed near the end of his life. But that isn’t what he wanted. That isn’t what he chose.
The second case Dr. Frazee brought to our attention was that of Sean Tagert, who also had ALS. He had a wonderfully elaborate setup in his home with his family, where he shared custody of his 12-year-old son, to whom he was devoted. Mr. Tagert required two additional hours of home care per day — two hours, colleagues — and he fought for it with all his might until he continued to be denied the care that he required. He was told he would have to go to an institution and that he could not bring with him the extensive technology that was developed to give his life meaning and value, and he would have to move four hours away from where his son lives. So he wouldn’t be able to see him or spend time with him until the end of his days.
As Dr. Frazee concluded:
So he too chose MAID, and only because he brought it to public attention do we know about it. Otherwise, we would have no idea. He would just be another person who met all the requirements and received an assisted death. But he called the decisions of his local health authority — denying him the care that he needed — he called those decisions “a death sentence.” He didn’t die of ALS. He died of our neglect.
When I asked Dr. Frazee what we can learn from this in the context of Bill C-7, she said:
. . . the lesson we learned from all this is that even under the current law, which people say is too restrictive and has very extensive safeguards, people are suffering for reasons that are not because of their disabilities or their illnesses. They are suffering from social neglect. We’re not even paying attention to that. If we expand this system — I think this committee surely must now understand, with all the evidence that you’ve heard — that the problem is only going to worsen.
Colleagues, I sincerely hope she’s right. Surely, we must now understand.
However, Minister Lametti has decided to cavalierly dismiss those concerns and rather chalk up the widespread opposition to this bill again to the religious right, who cannot be controlled. Putting aside the offensive characterization of people of faith as a fringe group that needs to be controlled, the minister knows full well that this bill has been condemned by most experts who testified at committee: physicians, international experts, the disability community, Indigenous organizations, constitutional experts, the former Attorney General who implemented Carter and, in fact, members of his own caucus. Instead, he would rather hide this horribly flawed legislation behind blatant mischaracterizations and perpetuate his party’s belief that people of faith are to be discounted and dismissed.
The disdain and lack of respect for religious Canadians are, by now, well-established patterns for this government.
My views on this legislation and on everything I vote on in this chamber are truly shaped by my faith, by my upbringing and by my life experiences. Colleagues, I believe that is the case for all of us. Every one of us has deeply held principles and values that have been shaped by our life experiences. Sometimes, that includes our own personal faith.
The significant difference is that I believe Minister Lametti has every right to his opinion, his perspective and his belief. I believe that he should be heard. He, on the other hand, does not reciprocate that belief. I believe wholeheartedly that there can be a variety of valid opinions on this matter and on others, whereas this government has demonstrated that they believe there is a right opinion and a wrong opinion.
Yes, my beliefs have played a significant role in my values and especially my perspective on assisted suicide, and I make no apologies for that.
However, again, we are not debating the legalization of assisted suicide. Minister Lametti is well aware that none of the major issues with this bill are based on religious grounds, and yet he finds an opportunity to insult people of faith. All that faith groups have been advocating for is adequate conscience protections for physicians and medical practitioners. The government has ignored the concerns of Canadians throughout this entire process, and they are now moving forward to implement the minister’s personal agenda.
We should remember that Minister Lametti voted against his own government in their response to Carter in Bill C-14, as he did not think the bill was permissive enough. The Senate, by contrast, has done an exceptional job of bringing key perspectives forward and examining this bill carefully. Minister Lametti, after blaming the religious right for this time crunch, is now telling the Senate to essentially ignore what we have heard and “really put [our] shoulders to the wheel” and get this bill passed by Friday.
Let’s take a look at the timeline, colleagues. I went over this twice with you the other night in my questions, but I will, again, for the record, do it in my speech.
In September 2019, the Quebec Superior Court struck down the clause that death must be reasonably foreseeable. Of course, Minister Lametti did not appeal this decision because, clearly, this was going to be his opportunity to put in place the permissive regime he had always wanted.
The court gave the Trudeau government until March 2020 to revise the law. That is six whole months. Ministers Lametti and Hajdu tabled Bill C-7 in the last week of February, and they were already running out of time. They asked the court for a four-month extension to July 2020. This letter said that the extension would “give Parliament time to consider and enact proposed amendments.”
This extension was granted.
Then, as we got closer to July, the government asked for another extension, this time a six-month extension, citing the pandemic. This extension, again, was granted, bringing the new deadline to December 18, 2020. The government then prorogued Parliament to cover up their own scandal and, as a result, killed their own bill. Then, after Parliament returned, it took them a week and a half to table identical legislation. This happened October 5, 2020, more than two months ago now, colleagues.
They sent this bill to the Senate late last week and publicly called upon us to rush through this life-and-death legislation in a few days. It is truly appalling for a minister to put public pressure on the Senate to rubber-stamp legislation that is fundamentally flawed and, in my view, unpassable. This comes after his previous extension request in which he asked the court to give Parliament time to consider and enact proposed amendments.
The Senate already did a pre-study of this bill in order to accommodate the government’s inept time management, and this is now how they respond.
Last Friday, Minister Lametti asked for an extension, yet this time, the request is remarkably shorter, demonstrating, again, his lack of respect for this chamber. He requested an extension only until the end of February, which, in reality, would give the Senate three sitting weeks to debate the bill, study the bill at committee, consider amendments, vote on amendments and send the bill back to the House. I suppose he figures it will not take very long to dismiss all the work of this chamber and reject our amendments, as they have consistently done.
Even with this extension request, the minister says he is still hopeful the Senate will rush this bill through in a few days. In the minister’s letter requesting a deadline extension, he states:
While there is a Government Representative in the Senate, there is no Senate caucus affiliated to the party forming government, which makes it difficult to predict the timeline of the bill passing through the Senate.
Essentially, he is saying that the independent senators in this chamber, exercising their independence on this critical legislation, are posing a problem for him for his government’s unreasonable timeline. No, minister, the blame for not meeting the deadline does not rest with the independent senators who are simply doing their jobs by scrutinizing this legislation. It also does not rest with the Conservative MPs who dared to raise on debate at third reading. The blame for another missed deadline lies squarely with this government.
Then the Trudeau government, through Senator Gold, our leader here in the Senate, presents a plan of action. I know he must have had a difficult time doing this, and I appreciate the cooperation we’ve had even today. However, I will read this, because I think it came from Minister Lametti:
This was the deadline we were given. Monday, we would do second reading. Tuesday, we would finish second reading. We would have a second reading vote and refer it to committee on Tuesday. Wednesday, we would have committee study. Thursday, the committee would report back. Report stage on third reading debate. Friday, third reading debate and vote, and Royal Assent or report to the House with amendments.
I’m not sure where in that time frame there would have been time for any amendments or, indeed, sober second thought.
More importantly, this timeline was a slap in the face to Canadians who have testified, who have been writing to us and calling our offices, advocating for vulnerable Canadians. This chamber has never — and I sincerely hope will never — spent one week debating the circumstances under which Canadians live and die, certainly not after the heart-wrenching testimony we heard from those most affected.
I am very pleased that we have been able, together with the cooperation of the leader in the Senate, to come forward with reasonable timelines.
And we will now not pass this bill at third reading on Friday. In light of this undue pressure from the government, it should be noted that we did get the opinion of constitutional experts on the last day of pre-study. Not one of them believed that it was necessary to proceed with this bill because of the arbitrary deadline imposed by the Quebec Superior Court. They explained exactly what would happen if the law was struck down in Quebec and remained in place in the rest of Canada. Operationally, it would work well, and it would likely lead to an eventual Supreme Court of Canada review, which would be very appropriate given the many ways this bill contravenes the Carter decision.
So with all due respect, Minister Lametti, regardless of the response to your extension request, this Senate has no intention of rushing this legislation through this house.
I want to thank Senators Jaffer, Batters, Campbell and Dalphond, and indeed the entire committee, for their work in bringing forward a wide range of witnesses — I have never seen as extensive a committee study and certainly not a pre-study — and for ensuring that this legislation received the thorough pre-study review it deserves.
I also want to thank all of the brave witnesses for their compelling testimonies. You have all enriched our perspective, and we now have a much deeper understanding of what we are being asked to vote on.
Colleagues, typically at second reading I recommend that we pass a bill so that it can undergo further study at committee. However, I have already reviewed it extensively. I struggled to vote in favour of this bill proceeding at any stage. While there are many Canadians who still feel they have been left out of this conversation and who deserve to be heard, this bill is so dangerous that I am eager to put a stop to it at the soonest opportunity.
Colleagues, I look forward to listening to the rest of the debate. My caucus colleagues and I, of course, will still consider how we will vote at second reading. Thank you very much for your time.
Would the honourable senator take a question?
Certainly, Senator Munson.
Thank you, senator, for your passionate speech. I certainly share some of your concerns.
As in 2016, some of us are having difficulty dealing with the sensitive issue. It puts me in a bit of a quandary, because I really believe in the concept of dying with dignity, and what has taken place thus far for those who have died with dignity. But I also believe in living with dignity for those who are disabled, so I am in a bit of a quandary. I’ve been listening to many learned speeches here today, and we’ll hear a lot more. Here is the question I have for you. You did say what you thought the government should do in terms of palliative care, more programs and so on, but we are the upper chamber, and it will get to amendment time, and amendments will go to the other side. The bill will probably be amended; it certainly sounds that way. And it gets there, and the last time it got there the amendment was defeated. We acquiesced, as the upper chamber, to what took place in the other place.
How far do you think this chamber should go in terms of exercising its duty? It is doing its duty right now in terms of listening to everybody who spoke: the witnesses, 80-odd groups and organizations. Who do you think still has the final say, this body or the elected body?
First of all, Senator Munson, let me concur with the statement about needing to find a way to make sure that people live with dignity. That should be our first concern. That, however, is not the question you asked, but I wanted to reiterate that. Palliative care should be an option. My dad got great palliative care.
How far should we go? We should amend where we see flaws. We had 81 witnesses, Senator Munson. I don’t think we had one that said this bill was good. That included the minister of disabilities. I’m not sure if Ministers Lametti and Hajdu were part of the 81, but if they were, well of course they supported the bill. But out of the rest, nobody supported this bill, and it was a range of witnesses.
So we will have amendments, and I think the chamber has a pretty good idea of where I would be wanting to bring forward amendments. I believe we have a duty as well to Canadians. Canadians are telling us this is a flawed bill. I have always believed, Senator Munson, that first and foremost it’s our duty, if we see flaws in legislation, to try to amend it.
I lost my train of thought.
We should amend legislation. We should try to improve legislation. I have always believed that. Our first and foremost objective should not be to simply vote against. I would like to. You said we acquiesced last time. I didn’t. I think I voted against it right to the end. But, of course, I can stand on my soapbox and say that because I was in the opposition then, and I’m in the opposition now.
Senator Munson, I don’t think this bill can be fixed in such a way that I will vote in favour of it when it comes to third reading. I really don’t believe that, but I shouldn’t judge that. I will vote in favour of certain amendments. But I believe that we have a duty to Canadians. This is not a money bill. This is not a bill where the government will fall. If they bring us a bill that is as deeply flawed as what we have heard from these witnesses — and the committee will have meetings again, they will hear more witnesses. They will come to us with a report. But I heard members on the committee say that we should not move this bill any further. We should kill it now. I’m not sure that I support that, but I do support the amendments.
It is a question that I ask myself every day, Senator. I’m not an elected senator. I’m an appointed senator. How far should we go? On a life-and-death situation, Senator Munson, I believe we should go all the way.
Thank you for that. You were in a real good train of thought just before that minor interruption, wherever that came from — someone’s darling somewhere. But you were there. You did answer the question and answered it well.
You talked about life and death. This bill is dealing with just that. There has been a deadline, and that will be delayed. We won’t be dealing with this in terms of the committee and voting until the middle of February. We know that. But when we talk about life and death, it’s real and it’s happening every day. So with this bill, in its process and as it’s being taken along — some people would say being dragged — we’re doing our duty. Is it right for us, though, with the amendments, once they went to the other side and came back, that Ping-Pong began? I have not seen this in the Senate and I’ve been here 17 years. Is that doing our duty if we move it back and forth between the House and this chamber?
We sent it back once last time if I recall correctly. Then it came back again, and we gave in at that point. So I think there is certainly precedent that we have sent it back. I’m sure, before your time and mine, there must have been other times. But, Senator Munson, there will not come a time when I will vote for a bill that takes out the safeguards that they have taken out, which will allow situations that we had with Roger Foley and John Taggart, with people taking their lives rather than offering them dignity to live. I’m sorry, there will not come a time when I give in to that and vote in favour of it. I don’t care how often we have to send it back. There are safeguards that have been taken out of this bill. I respect everybody’s opinion in this chamber. We heard about safeguards from Senator Pate yesterday, from Senator Miville-Dechêne and others. If those safeguards are not in there, I will never vote for this bill.
Senator Plett, will you take a question?
Absolutely.
Senator Plett, you had the opportunity and were a very engaged senator as you participated in many meetings of the Senate Legal Committee at the pre-study held three weeks ago. There was a powerful moment when you asked a panel of witnesses from the Indigenous community whether the government should “hit pause” on Bill C-7. My recollection — and you referenced this in your speech — is that three of the four witnesses said “yes, hit pause,” and the other witness, I think, said “maybe.”
This was largely due to the government’s glaring lack of consultation with the Indigenous community. I was wondering if you could please tell us a bit more about that issue, particularly given that this is such a gravely important life-and-death issue.
Thank you, Senator Batters. I have to be careful here that I don’t do what I did last night, but I don’t like speaking directly to somebody behind me without looking at them.
Senator Batters, you are absolutely right. We want to talk about this bill and not the government’s general track record, but there has been a lack of consultation with Indigenous communities for sure by this government, and not just on this legislation. Not only was there a lack of consultation with the Inuit and Métis communities, there was no consultation. You are absolutely right; the main focus that these four Indigenous witnesses had was that they were upset and disturbed about the lack of consultation. And I need to tell you, the fourth witness — and I don’t want to put words in her mouth, she seemed uncertain — was as adamant about the lack of consultation as the other three. I think it is shameful when a large group of people like all the Inuit and all the Métis people in our country have not been consulted at all.
Senator Plett, one of the many important witnesses who participated in the Legal Committee pre-study was Dr. Ramona Coelho, a primary care physician to many patients with disabilities. She noted that patients who are vulnerable may interpret a doctor raising the option of assisted suicide not so much as a choice for them but as an instruction. She testified saying this:
. . . they’re hearing it as an instruction to them and not in the same shared decision making that a well-off autonomous person might. The fragility there, the insecurity there and then the suggestion on top can push them to confirm that, yes, my life is not worth living. It’s very dangerous.
Senator Plett, I know you questioned a number of witnesses about this particular issue, including Minister Qualtrough, that an assisted suicide request should be patient-initiated, not something to be brought up, even as an option, by the medical practitioner involved. Could you please tell us why you think that is such an important issue?
Thank you. Indeed, one of my largest concerns is about coercion. For Roger Foley, it was four times. He never asked for it, and four times it was suggested to him. I think we can all put ourselves in Roger Foley’s shoes. Well, maybe we can’t. But if we’re handicapped, we cannot help ourselves, we are dependent on others, and a physician we respect is suggesting that maybe we are a bit of a drag on society and maybe society would be better off without us.
We can take this away from the disability community and into the elder community. I’ve shared stories about my mother; 92 years old. She is taking up a room. If somebody started encouraging her saying, “You know, Mrs. Plett, you’re taking up a lot of space here that could be much better used by others,” I think the disabled people feel exactly the same way. They need to be encouraged, and they need to be shown and built up into how much value they have: their wisdom and their knowledge. They need encouragement.
Assisted suicide should always be patient-led. It should never be suggested by anybody. Nobody, whether it’s a family member or a physician. It should be something that a patient sincerely wants. Thank you for the question.
Will Senator Plett take a question, please?
Yes, certainly.
Thank you, senator. I want to concentrate on your remarks related to people with disabilities. I hear what you have said, and I have read and heard the testimony of Catherine Frazee and other people with disabilities, and I have a lot of sympathy for that position. I believe, as Senator Munson said, we should give them every opportunity to live with dignity. That’s an important point.
However, I would like you to respond to the perspective of Nicole Gladu, who has a disability and was one of the two people in Quebec whose cases went before the Quebec Superior Court. The decisions in those cases have brought us to this juncture today. She stated that not all disability cases are the same. Each case must be assessed on its own merits, and a blanket exclusion of people who are not at the natural end of their lives is a violation of their Charter rights. How would you respond to her?
Senator Omidvar, the first comment I would make is that I might be happy that I don’t have to respond to her. I say that very sincerely. I don’t know what these people are going through, Senator Omidvar. I am inherently opposed to a person taking his or her own life, or somebody helping somebody take his or her own life. That’s in my genetics, if you will. That’s in my beliefs. That’s in my upbringing. I want you to understand that I am coming from there.
But if I take that hat off, then I would say that maybe there cannot be a blanket rule. I am talking about the inherent misgivings and the weaknesses of this bill when people who want to live are being coerced into dying. That’s what I’m talking about. I’m not talking about the people who are of sound mind. We aren’t there yet. I’m not somebody in favour of mental disorder or mental illness being the sole underlying factor in somebody asking. If somebody is of sound mind, it’s a separate issue.
Again, I’ve had this particular discussion with my very good friend Steven Fletcher, who many people know. He went through so many horrible things, and he told me about how many years he just wished he could die. So when you talk to somebody like that personally, you would make a different decision than if you’d talked to Roger Foley.
This, senator, is why I believe we have to make a blanket decision that we cannot do something, because if we take every case individually I believe every person would have a unique case. I’m sorry, that probably doesn’t answer your question, senator, but I really think that’s about as good as I’m going to do on that question.
Senator Plett, in my experience, limited as it is, people with disabilities who have sound minds are often extremely effective advocates for themselves because they have to negotiate their daily lives in a way that you and I can’t imagine because we are not disabled. I think that if they make their own choice based on their lives and their reality, I would say to you, who are we to stand in their way of participating in this new amended law?
Let me answer that with another question. If I’m just tired of living one day, should I be able to go and take a gun and shoot myself? There are many who would maybe say, “Yes, you should be able to do that, Don,” but I hope there would be more who would say, “no.”
You are simply saying, who are we to stand in the way of somebody asking for assisted suicide, or who are we to stand in the way of them committing suicide? We need to focus on our support system, first and foremost. We need to focus on our support system before we focus on ending our lives. Let’s try to find ways of giving people a reason to live rather than giving people a reason to die.
Would Senator Plett take a question?
Yes.
Senator Plett, thank you very much for your speech and your important contribution to our Senate debate on Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). Like the other excellent speakers we have heard to date, you have helped us in our efforts to apply sober second thought to this societally important bill. You have raised many fundamentally critical issues in your remarks. Like you, I’m sure we are all on high alert intellectually, ethically, morally and spiritually as we grapple with this legislation that stretches each of us, and challenges us to find the right balance between the potential benefits to Canadians and the importance of avoiding harms to Canadians, particularly our most vulnerable citizens, with this significant change to our Criminal Code.
Senator Plett, you’ve spoken forcefully and thoughtfully about the potential harms of Bill C-7. Please know that I do share a number of your concerns, and in particular, I feel it is imperative to listen to the voices of members of the disabled communities, their families and representative organizations. These organizations have asked us to ensure that our society prioritize efforts to improve opportunities for their members to enjoy a dignified life. They’ve also asked that they be more fulsomely consulted on Bill C-7, and in particular, on the matter of safeguards.
What I want to ask you, though, is about your perspective, similar to what Senator Omidvar was asking, on how to answer those vulnerable Canadians who are asking us to listen to them and respect their wishes to get final relief from their intolerable suffering, and to be allowed to have access to medical assistance in dying so that they might die in dignity? What should we say to people who, like the late Audrey Parker, are dying but do not currently have the right to provide advance consent and therefore choose, unfortunately, to die earlier than they would otherwise have, out of fear of losing the capacity to consent?
What should we say to disabled people across Canada who tell us that their suffering and condition is so severe that they want the same access to medical assistance in dying that Mr. Truchon was granted by the court in Quebec?
How do we balance these questions, these requested benefits and also these calls for rights, and balance those with our concerns about the potential harms that you have mentioned? This is really what we’re asking in this debate. I want to know sincerely, Senator Plett — believe me, I do not personally have the answer to these questions — and I want to know what your answers might be to those. Thank you.
Senator Coyle, I think the simple answer to your question is “ditto”; I also don’t have the answers to all of that.
My main answer to that is that I would rather sit at somebody’s bedside and try to give that person every reason to want to live, and support that person with proper palliative care. But we are basically saying — our government is saying — that rather than putting extra money into palliative care, let’s rather find a way of allowing people to hasten their death.
Senator Coyle, when we take situations like Sean Tagert, when we take situations — and I’ll speak of a very personal one in my community, in Landmark, a young lady related to me died, and the last weeks of her life, she could move her eyelids. That was all she could move. But until the very end, when she could still communicate, she had her family there. They assisted her. She got all the care she needed, and she wanted to live. She wanted to have her children beside her until she died naturally.
So we have different situations. How can I answer a question when it hasn’t hit me personally? I can give you that example of somebody who wanted to live. And until we exhaust every avenue of trying to improve people’s lives, I don’t think we should try to find ways of hastening ending people’s lives.
Senator Plett, will you take a question?
Certainly, senator.
Senator Plett, I was asked yesterday how many racialized groups have been consulted and how many faith groups have been consulted, and I didn’t get an answer. Maybe this is a question I should have put to the government leader in the Senate. I’m wondering if you know, if you have an answer for me.
Well, unfortunately, Senator Ataullahjan, I am not aware of any racialized groups and/or faith groups that have been consulted. We have heard time and again that the government has done extensive consultation. Yet, we heard from witnesses at committee that either the consultation was inadequate or there was none. I do know, as I said earlier, no Métis or Inuit groups were consulted. There was very little consultation done with the Indigenous communities.
With respect to faith groups, we heard from a number of organizations, including the Canadian Council of Imams, the United Church, the Canadian Conference of Catholic Bishops, just to name a few. All of the faith groups were opposed to the new proposals in this bill, but they weren’t consulted.
So I am not aware of any racialized groups, and without question, Senator Ataullahjan, the government had — I don’t know that I want to flog this horse to death — but they had all kinds of time. They had 16 months. Yes, they had an election, but then they prorogued Parliament, and even after that it took them two months. This bill is numbered C-7. Why isn’t it numbered C-2? Why didn’t they move it along earlier? It’s Bill C-7. They dealt with all kinds of other legislation that we haven’t received here, but at the end, they needed to rush this through.
Senator, you, I and everybody in this chamber have been part of approving hundreds of billions of dollars during a pandemic, that the government would not get done properly, and then they would rush it into our chamber and we would have a day to approve it. And if we didn’t, they would let every Canadian in the country know that we didn’t want to help them.
That’s the way they treated this bill. Senator Munson asked, “What do we do?” This is a bill where we can truly, I think, show Canada what the Senate should do when there isn’t proper consultation and when the government moves something through and wants us to pass it in a hurry. I don’t think we should be moved. Maybe we should find a way of consulting with these groups, but there hasn’t been enough done.
Senator Plett, thank you for that answer. I asked because, as a Muslim, I bear the responsibility for 1.5 million or maybe 1.6 million Muslims, and they will be questioning me. I guess I don’t have an answer for them. If the government did consult one imam for 1.5 million or 1.6 million people, that is not enough.
My next question for you is a question I asked Senator Gold yesterday. The UN Special Rapporteur on the rights of persons with disabilities warned — this was earlier this year — that if assisted dying is made available for persons with health conditions or impairments but who are not terminally ill, a social assumption can be made that it is better to be dead than to live with a disability.
Senator Plett, is there any way that we can ensure that those who choose MAID are not making that choice because of social stigma, isolation or lack of access to personal assistance or disability-related services?
First, when you say, “I don’t know what to tell the people I am representing,” I think you can tell the Muslim community and the imams that they haven’t been singled out here. They’re not being picked on. Typically, the government hasn’t consulted with anybody, so you’re certainly part of the larger group.
Senator Ataullahjan, the second question goes to what I have been saying all along. We need to find a way of making a person who is ill, who is handicapped or who cannot contribute to society as much as he or she feels they should believe that they are contributing to society. The fact that they can’t move their arms or legs — they are contributing to society.
As long as we’re going to try to find a way of letting them die with dignity as opposed to letting them live with dignity, then that will be the first thing we’re going to do, because isn’t that the easiest thing? If we want to take the easy way out, senator, then we pass this bill. If we want to do the hard thing and the right thing, we either amend this bill or we reject this bill.
Senator Plett, will you take another question?
Certainly.
I appreciate what you said. In fact, I want to commend everybody who has spoken on this bill. I have found the level of debate excellent, and I appreciate the honesty and the concerns that are coming forward.
If I may, I am one who has dealt with issues of palliative care in its various stages, and in every step of those stages, I have to say, there are tough decisions.
Senator Plett, I agree with you about living with dignity, and I also agree with dying with dignity. I think in these difficult decisions, in looking at this from 360 degrees and from some of the differing perspectives, we bring forward and raise conflicting issues.
I want to, if I may, ask you about a letter I received from a friend. We’ve had a subsequent conversation. Her husband died peacefully, with assisted dying, in his own home, with his wife at his side, on October 26. He was a lawyer; very sharp. He’d had a 10-year challenge with bone cancer and throughout that period was able to have a good quality of life. However, earlier this fall, he was diagnosed with pancreatic cancer, and that’s when he made the decision to end his life. He was determined to die with dignity as he had lived with dignity.
A question they’d faced — we had a long discussion about this last night — was the 10-day wait period in the current piece of legislation. For him, that was really difficult, because his medical situation had his quality of life decreasing and pain increasing. In the end, he stopped taking morphine so he could make sure he was of sound mind on that day 10 to enact the decision that he had made.
I know some people are saying 10 days is too long. Other people are saying it’s not long enough. I know this is changing your discussion a little bit, Senator Plett, but I would really value your thoughts on that situation of an articulate, accomplished Canadian citizen who had thoughtfully and carefully made up his mind.
His wife said to me:
As a surviving spouse of 40 years, the fact that I was able to share this journey with him in our home and know with such certainty that he accomplished his goal to die a dignified death has contributed enormously to my own healing.
I know what those healing situations are like, so I would value your thoughts about the 10-day waiting period in the current legislation and the proposed change in this legislation.
Thank you, Senator Bovey. I want to assure you, senator, that I believe in trying to make sure people can die with dignity. It’s the hastening of it that I don’t support.
I wasn’t beside my mother-in-law’s bed. We were there minutes after. However, I sat beside my father-in-law when he took his last breath. I sat beside my own father when he took his last breath. They both died with dignity. They did not ask for any help. They received morphine right until the end, but they died with dignity. I think you don’t need to hasten your death to die with dignity.
With regard to the individual you’re talking about, it is fortunate he was of sound mind in the end, but many people aren’t that clear of mind. When we don’t have a reflection period, and someone who is in extreme pain makes a decision and they don’t have a reflection period — I shared the story of the lady in the Netherlands who made some significant moves at the end when they wanted to give her the substance that would then ultimately take her life. If there isn’t a proper reflection period, people can change their minds and not do this.
I certainly don’t know the case of the individual you’re talking about, Senator Bovey, so I don’t want to in any way judge the decision he made or, if the reflection period hadn’t been there, whether he would have made a different decision. But I think the 10-day or 14-day reflection period is a safeguard that absolutely has to stay there. I would even wish that it was a longer reflection period. People have bad days and bad weeks, and then they sometimes rebound a bit and have some good weeks.
I’m concerned about every safeguard that is removed because those safeguards were placed there for a specific reason. This is why I asked Senator Batters yesterday about the slippery slope scenario. I think every move we make is a slippery slope where we are getting one step further.
My personal preference, Senator Bovey, is we at least keep that in or even extend that.
Senator Plett, I’m not sure if this last little bit is a question or just putting something on the floor. His widow also said to me:
My husband was also very focused on the quality, not length of life. That quality could be defined by him and him alone.
If he had taken the morphine that he needed for the pain in those last few days, she and he knew he wouldn’t be of sound mind on day 10 when he made the final decision, so he did not take the morphine.
Her lines were, and I would like your thoughts on this:
I can say unequivocally that there are so many checks and balances in the process that these last hurdles that still exist and will be addressed by the amendments are unnecessary and cruel.
How do we find the balance, Senator Plett, between giving people the time they need — and you’re quite right, people have their down days and their up days — and dealing with what’s unnecessary and cruel? How would you recommend we define that balance as we look at this legislation?
I can only answer that, in my opinion, trying to keep a person alive isn’t cruel. I think it is helpful and that’s what we should do.
Colleagues, I rise today to speak on debate at second reading of Bill C-7, a parliamentary step that is defined as follows in the House of Commons Procedure and Practice, Second Edition, 2009:
Central to the second reading stage is a general debate on the principle of a bill. Although the Standing Orders make no specific reference to this practice, it is deeply rooted in the procedural tradition of the House. Accordingly, debate must focus on the principle of the bill and not on its individual provisions.
In other words, our vote at second reading will either be in support or in opposition to the principle of this bill, which is to expand access to MAID.
This bill stems from a judgment of the Quebec Superior Court rendered on September 11, 2019, that rejected the arguments of both the Attorney General of Canada and the Attorney General of Quebec about the validity of one of the eligibility criteria for MAID called the “reasonably foreseeable natural death” criterion in the Criminal Code and the “end of life” criterion in Quebec’s Act Respecting End-of-Life Care.
Those who were here in June 2016 when Bill C-14 was adopted will remember that the majority of senators agreed that this criterion was contrary to section 7 of the Charter of Rights and Freedoms. On section 7, the Supreme Court of Canada said in 2015, in the case of Carterv. Canada, which was a unanimous judgment:
. . . we do not agree that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life. This would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs”. And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect. . . .
However, the government and the House of Commons declined the Senate’s amendment, and the Senate finally decided not to insist. As expected, the criterion was quickly challenged. Only 10 days after the passage of Bill C-14, Julia Lamb, a woman in her twenties with spinal muscular atrophy, and the B.C. Civil Liberties Association launched a constitutional challenge before the Supreme Court of British Columbia.
On June 13, 2017, another challenge was launched before the Quebec Superior Court by Jean Truchon and Nicole Gladu.
Mr. Truchon was 49 at the time. He suffered from spastic cerebral palsy with triparesis since birth. This condition left him completely paralyzed with the exception of his left arm, which was functional and which, until 2012, allowed him to perform certain everyday tasks and to move around in a wheelchair. Mr. Truchon received medical assistance in dying last April.
Ms. Gladu is now 74 years old, and was born before the time of widespread vaccinations against poliomyelitis. She survived an acute paralyzing form of this disease, which she developed at the age of four. She had significant sequelae, including residual paralysis of the left side and severe scoliosis caused by the gradual deformation of her spinal column.
The claim was perfected and then heard in early 2019. The proceedings lasted 31 days over a period of two months. A total of 24 witnesses were heard, including 17 experts. The court also heard from eight intervenors, including the Council of Canadians with Disabilities, the Canadian Association for Community Living, Christian Legal Fellowship, Collectif des médecins contre l’euthanasie and Dying with Dignity Canada. Several of these groups testified again before the Legal and Constitutional Affairs Committee two weeks ago.
On September 11, 2019, after six months of reflection, Justice Baudouin rendered her decision, a little more than two years after the legal proceedings started, which is normal in cases like this one. Justice Baudouin said the following about the imminent death requirement:
The state-imposed limitation that death be reasonably foreseeable before medical assistance in dying may be requested is overbroad. It is so because it prevents some people, competent and fully informed, such as Mr. Truchon and Ms. Gladu, who meet every other protective condition of the law and who express a rational desire to end the suffering caused by their grievous and irremediable condition, from requesting such assistance.
Justice Baudouin continued as follows:
In this sense, the limitation largely exceeds the object to such an extent that it has no real connection to the object of protecting vulnerable persons who might be induced to end their lives in a moment of weakness. It instead forces them to make the cruel choice described by the Supreme Court —
— in the Carter decision —
— by imposing that they either suffer intolerably for an undefined period that could last months, even years, or that they take their own lives their own way, all to satisfy a general precautionary principle.
It is interesting to note that the principle of precaution was also recently rejected by the Supreme Court of Canada in Attorney General of Ontario v. G., which senators Gold and Carignan referred to in their excellent speeches.
I will come back to that ruling during study in committee at third reading stage, but for now I will keep to the principle of Bill C-7, namely to expand access to medical assistance in dying.
All of us will remember that at the time of the Truchon judgment, we were going through a general election. In fact, Parliament was dissolved on the same day the judgment was released on September 11, 2019. On October 3, the Quebec government announced it would not file an appeal. A week later, on October 10, during the French electoral debate, Prime Minister Trudeau made a similar announcement.
In other words, both governments decided not to avail themselves of the right to appeal the judgment before the Court of Appeal of Quebec. Most likely a ruling by the Court of Appeal of Quebec on this matter is one case for which leave will most likely be granted by the Supreme Court of Canada. Some witnesses and some members of this chamber believe that not appealing was unwise. While I respect their opinion, I do not share it.
Of course, filing an appeal would have given both governments a few more years to avoid making a decision, pending an appellate process up to the Supreme Court of Canada. Instead, both governments decided to face the music, well aware that at the end of the day it falls squarely on lawmakers, not on the court, to define to what extent MAID should be made available and what safeguards should be implemented.
Of course, eligibility criteria and safeguards adopted by Parliament or by a province must be in compliance with the Charter of Rights and Freedoms. In this regard, the institutional roles of both courts and parliaments are different, as the Supreme Court said recently in Ontario v G:
. . . the legislature is sovereign in the sense that it has exclusive authority to enact, amend, and repeal any law as it sees fit, while courts remain guardians of the Constitution and of individuals’ rights under it.
Colleagues, we often hear that politicians are hiding behind judges’ robes to avoid making difficult decisions, but this time both governments decided to act. They did so in consideration of the teachings — not only of the Quebec Superior Court in Truchon and of the Supreme Court of Canada in Carter, but of this Senate in 2016.
Why? The answer to that question was repeated many times. It is because both governments believed in the principles of autonomy and equality of individuals, including the right not to be forced to resort to other inhumane options like voluntarily stopping eating and drinking, or the use of a violent means to put an end to their enduring and intolerable suffering.
All Canadians were made aware of the Trudeau government’s decision. Canadians had the opportunity to question all candidates about the decision not to appeal Truchon, and thus the very decision to expand access to MAID.
Last week, those elected in the last general election spoke loudly and clearly. Bill C-7 was adopted by 213 of them and opposed by 106. It is important to know that this 2 to 1 majority includes members of all the parties in the House of Commons, including 13 Conservative MPs, all Bloc and NDP MPs then present, and all Green MPs and nearly all Liberal MPs. This is quite significant considering the nature of the bill, its complexity and the larger set of difficult issues it raises of a legal, social, personal and ethical nature.
Colleagues, it is against this backdrop that we are now called upon to vote at second reading of Bill C-7.
I know some of you, like many witnesses we heard at the Standing Senate Committee on Legal and Constitutional Affairs, are opposed to MAID in any form whatsoever. I respect your opinion, but Bill C-7 should not be viewed as another opportunity to oppose MAID in principle.
As the Supreme Court has stated, the government has a constitutional duty to provide access to MAID for Canadians who want to put an end to their enduring and intolerable suffering resulting from an egregious and irremediable condition, and who wish to do so peacefully in a safe setting surrounded by their loved ones. It is a matter of respect for the dignity and autonomy of all citizens in a democracy. For these reasons, I will vote “yea” to second reading of Bill C-7, a bill that seeks to bring an end to denying a constitutionally protected right to many Canadians under section 7 of the Charter.
That does not mean that I support every part of the bill. As you know, I have expressed serious concerns about the proposed exclusion of individuals with a mental illness as a sole underlying condition. Others may wish to have more safeguards in connection with specific situations. Thus, I look forward to debating the various measures proposed in Bill C-7 with colleagues at the committee and at third reading. Thank you, meegwetch.
Would Senator Dalphond take a question?
Yes, if I am given more time to respond to the senator.
May I have five more minutes?
Senator Dalphond, I would like to call upon your experience as a former judge at the Superior Court and at the Quebec Court of Appeal and ask you to give us some clarification on what would happen if Bill C-7 were not passed. What would happen in Quebec? Would there be a legislative vacuum? Can you clarify that for us?
Thank you, Senator Bellemare. That is an interesting and very important question. As you know, the government requested an extension, and it will make its case before the Quebec Superior Court tomorrow.
The legal situation in Quebec is this: A September 2019 decision by the Quebec Superior Court rendered invalid, unconstitutional and inapplicable the part of the law that requires a person’s death to be imminent. However, at the request of the attorneys general, the decision was suspended and the Superior Court granted a six-month deadline, which means that the declaration of unconstitutionality would not apply for six months. That is a relatively short period of time because the norm is usually 12 months. That being said, the Superior Court extended the deadline twice. Another request was presented to the court, which would bring the extension to a total of 15 to 17 months. That isn’t much different from the situation with the Carter decision, where the Supreme Court granted 12 months and then extended the deadline when the government held a majority.
Now, what is the situation in Quebec? In Quebec, the law is unconstitutional, but the declaration of constitutional invalidity does not apply. If the Superior Court decides on Thursday or Friday to once again extend the deadline, this declaration of constitutional invalidity will remain unenforced in Quebec until the end of February. Meanwhile, the law will continue to apply in Quebec.
If, on the other hand, the Superior Court decides not to extend the deadline again, the ruling will take effect and the provision that requires death to be imminent will no longer apply in Quebec. That means that Quebec will not be facing a legal vacuum because the law will apply without the requirement of imminent death. Doctors who receive a request for MAID in such circumstances will therefore have to decide whether to take the risk and put themselves in a position where they may be subject to criminal prosecution by the Crown or an individual.
In the other provinces, if the effect of the decision were not suspended, then, as of tomorrow morning, in New Brunswick, Alberta or British Columbia, anyone could request MAID and apply for a constitutional exemption, which the Attorney General of Canada could not oppose because he could not say that the Criminal Code provision applies in Ontario or New Brunswick and that it is constitutional. By not appealing, the Attorney General recognized its unconstitutionality. We are going to end up in the same situation we were in with Carter, where there was no new law for a year and the parties applied to higher courts for constitutional exemptions. There were 25 such applications in Alberta and hundreds across Canada because there was no law in force anymore. That is the kind of total anarchy we have to avoid by requesting another extension. I hope the Superior Court will grant it, and I hope it will strive to uphold the rule of law and avoid nationwide anarchy until the Senate has studied Bill C-7 and the government has enacted it. I hope that answers your question, senator.
I have a supplementary question. I understand that the situation would be chaotic, but isn’t the issue of abortion similar to the issue of medical assistance in dying? The practice is not consistent across Canada, nor is it addressed as a criminal matter.
With the chamber’s consent, I would like another five minutes to answer Senator Bellemare’s question.
Once again, this is a very interesting question that forces me to make a distinction. You will recall that, on the abortion issue, the law was stuck down as unconstitutional in Morgentaler. The government of the day then introduced a bill that passed in the House of Commons; however, at third reading in the Senate, it received exactly the same number of votes for and against, which meant that the bill did not pass. The upshot is that Canada has had no abortion law since that time.
That is not the same as what is happening in the current situation, where the Criminal Code still applies and there is a framework in place. There is no framework in place for abortion.
Would the honourable senator take a question?
With pleasure.
Thank you, senator, and thank you for your remarks. I wanted to probe a little around the exclusion of mental health from this amendment to MAID. Many think it is unconstitutional, and it may well be. However, in the short term, Bill C-7 deals with its intent on mental illness in the preamble. The preamble states:
Whereas further consultation and deliberation are required to determine whether it is appropriate and, if so, how to provide medical assistance in dying to persons whose sole underlying medical condition is a mental illness . . . .
I know that preambles are not adjudicated in court, but they do show intent and, as we’ve heard in this chamber before, courts take that into consideration when pronouncing judgments. So in the short term, at least, until the government deals with the study of Bill C-14 and potentially brings forward a new bill, do you think the exclusion could temporarily hold up in court?
Thank you, Senator Omidvar, for this question. Of course, I’m not going to speak as a judge; I’m no longer a judge. But the question is about the meaning of that part of the preamble, and I think it is an illustration of the principle of precaution. This is the principle of precaution versus the constitutional right to have access to something. When you have to balance out the principle of precaution versus the constitutionally protected right to autonomy, I suspect that, from the judgment of the Quebec Superior Court, and from the recent judgment of the Supreme Court in Ontario v. G, that the balance will be in favour of the constitutional right and not the precaution.
Thank you.
Would the senator take a question?
Of course, Senator Carignan.
Senator, I listened to your speech, but I am not certain that I understood you correctly. You mentioned anarchy. I am rather shocked by the use of that term. I presume you misspoke, because all of Justice Baudouin’s rulings, all the rulings on the extension of the various suspensions, state that, in any event, even if the extension is not granted, there would not be a legal vacuum. Only the concept of reasonably foreseeable natural death would be removed. The entire legal framework that was adopted is consistent with Carter, and there are very specific criteria. We are a long way from anarchy.
Senator Carignan is quite right to correct me. “Anarchy” is not the right term. I wanted to say, as the Supreme Court did, that the suspension of the declaration of unconstitutionality seeks to uphold the rule of law and ensure consistent application and compliance in the meantime.
Honourable senators, I rise today to join debate on Bill C-7, which would make amendments to the medical assistance in dying legislation. My remarks come after discussions with groups on both sides of this debate: ones that are in favour of this legislation, as well as those who have voiced concerns with the processes and procedures by which this legislation came to fruition. While I was initially inclined to support the passage of this bill, information about the consultation period, or lack thereof — with Indigenous stakeholders and service providers, especially those from the disability community — has caused me great concern. My role as a senator of Cree descent is to bring those voices to the floor.
Colleagues, issues surrounding consultation are not new, but remain an ongoing issue that every government seems unwilling or unable to accommodate and rectify. Until consultation is done in a fulsome and responsible way, we run the risk of continuing to trample on the rights, not only of Canada’s Indigenous population but also our non-Indigenous population. We also have the reality of emotional and psychological harm to the disability community who fear that this bill could result in lost lives. How did we get here, once again?
Honourable senators, one conversation I have had on this important bill was with Dr. Sara Goulet, a health care professional who flies into remote, Northern First Nations communities to provide health care to citizens. Dr. Goulet is also the Clinical Lead, Ongomiizwin Health Services, and Associate Dean of Admissions at the Max Rady College of Medicine, University of Manitoba. Dr. Goulet attended a round-table discussion on medical assistance in dying on February 3, 2020, which was hosted by Justice Minister David Lametti and Parliamentary Secretary Arif Virani. This session was to focus on Indigenous people’s perspectives on what would later become Bill C-7.
The meeting on February 3 was attended by roughly 10 participants and was the only discussion that I am aware of that took place with Indigenous peoples or stakeholders through the legislative process surrounding Bill C-7. This, colleagues, is of great concern to me. One round-table discussion with a handful of participants is not adequate consultation, nor does it even constitute what can responsibly be deemed as fulsome.
As Dr. Goulet herself had indicated to me:
The theme of the meeting and what each invitee spoke about on the call was the need for appropriate consultation [and] that the group on the call could not provide the right advice, nor represent the perspective of all Indigenous peoples in Canada.
We now know it was expressly indicated to those government officials present at the meeting that those participants did not feel that they were able to provide the appropriate advice and information that was being sought from them. The participants also highlighted that they could not speak for any other Indigenous group, organization or peoples. This should have been a clear signal to the government that this round table would not come close to meeting the threshold required to satisfy the minimum expectations of responsible consultation.
Colleagues, another issue that Dr. Goulet had mentioned was that she was the only physician on the call. She had indicated that the participants wanted to do a broad consultation on this subject in a variety of First Nations communities to start to get an idea of the impact the current law is having on them and their citizens. This was clearly not accommodated. The insight that Dr. Goulet impressed upon me is that:
Many Indigenous peoples are not aware of MAID as an option. In particular those living in more remote communities would not have even had the opportunity to hear about the law.
Honourable senators, as I have been advised, there were also huge concerns raised by the participants of this meeting around the limited access for Indigenous people to obtain culturally safe and effective health care in Canada. This experience is compounded by the limited access to food, clean water, safe housing and education that supports cultural practices and resilience. The participants present wondered how health care professionals could be satisfied that all other options for treatment, or relevant services, had been offered to the patient before choosing to end their life.
I will quote Dr. Goulet again:
Bottom line is that not enough is known and not enough consultation has been done to make good decisions around MAID policies as related to their impact on Indigenous peoples in Canada.
This is a very big statement to make, colleagues, and one I hope everyone takes to heart.
Dr. Goulet has also generously indicated her interest to help with, in her words, “an actual consultation process around this topic,” which would ideally include other health care professionals and Indigenous community stakeholders interested in discussing what is a critical, life-determining topic.
Honourable senators, I have also had the opportunity to speak with Mr. Neil Belanger, Executive Director of the British Columbia Aboriginal Network on Disability Society, or BCANDS for short. Mr. Belanger was one of the other participants at the aforementioned round-table discussion held in February of this year, along with Dr. Goulet. In his own words, he stated:
There has been zero consultation with Indigenous peoples on this Bill in any tangible way — one meeting that I am aware of, of which I was at, but was not well attended by Indigenous groups, and the disability component was on no one’s radar except [BCANDS].
Colleagues, considering the sustained and ongoing calls we have heard from disability advocates voicing their concerns about this bill, it is alarming to hear from Mr. Belanger that the issues we are hearing now — and which he had initially flagged to government officials back in February — were not being adequately considered.
Through our deliberations, I find that Mr. Belanger has put it best when he said:
This alone should be enough to stop the proposed changes. If we are true to UNDRIP, self-determination and reconciliation, if this is pushed through without [the Indigenous disability community’s] voices, it gives a clear message about Canada’s commitment to these processes.
. . . We cannot in good faith or conscience make any recommendation that would exclude Indigenous peoples living with disabilities from this process and in doing so expose them to even further risk in a health system where their safety is already shown to be precarious. This Bill needs to go to the Supreme Court and Indigenous peoples living with disabilities and non-Indigenous peoples living with disability have got to be involved in this process.
Honourable senators, why place the extra responsibility on the disability community and Indigenous peoples to support a bill that puts them at greater personal risk, essentially saying, “We ask that you support this bill, despite the fact that it will inevitably result in your continued suffering”? Why place them in a position where they feel the Supreme Court of Canada is their only safety mechanism — an option that they can ill afford?
We have heard during debate that it is unacceptable for as much as one person to continue to live in pain needlessly. I would also argue that it is unacceptable for as much as one person to be coerced into receiving MAID as an option by an unethical and unconcerned health care professional.
Colleagues, Indigenous peoples in Canada already have a form of medical assistance in dying thanks to the systemic racism that exists in our health care system. We need look no further than the alleged professionals who were supposed to be providing care to Brian Sinclair and Joyce Echaquan. The issue of systemic racism is a fundamental and largely unacknowledged issue with this legislation. Is this lack of consideration and its potentially lethal consequences really a risk we want to take?
Colleagues, it is astounding to me that in this chamber of sober second thought we are expected to rush through our study on a bill that has the potential to do immeasurable harm to the disability community and to Indigenous peoples in Canada. This bill, particularly through track 2 and the provision of MAID for those people whose death is not reasonably foreseeable, is simply too precarious for these marginalized and vulnerable groups. This is a serious law that needs serious consideration, not just a rubber stamp. It is for these many reasons that a bill of this critical nature, which has been identified as having serious and fundamental flaws, as articulated by various groups, is one that I am hesitant to support. Thank you.
Honourable senators, I rise today to speak on Bill C-7, An Act to amend the Criminal Code (medical assistance in dying). Although it originally aimed to act as an exceptional mechanism to prevent suffering in the final stages of the dying process, Bill C-7, in its present form, still requires important amendments, as it discriminates against those with disabilities, excludes Canadians suffering from mental disorders and has become a burdensome process for patients who are not at the end of life.
Several amendments have been presented to the government but, sadly, all were rejected. The Senate Committee on Legal and Constitutional Affairs conducted a pre-study on this bill and produced a report. More than 80 witnesses shared their views with committee members over a five-day period.
The chief deficiencies of this bill were outlined in the committee’s report dated December 10, 2020. I would like to highlight some of these Canadian Charter of Rights and Freedoms concerns presented in the report.
A major concern with the Charter has to do with the removal of the legal requirement of a person having a reasonably foreseeable natural death. A patient whose sole ailment is a disability that cannot be mitigated through our health care system may qualify for MAID. According to major national disability organizations, this legislation would discriminate against those with disabilities.
According to a 2017 Canadian government survey, we had 6.2 million disabled Canadians. At that time, that number equated to 22% of our population. Almost a quarter of our population suffers from at least one disability.
Eliminating the reasonably foreseeable natural death requirement removes an essential safeguard protecting our most vulnerable from being compelled to choose MAID.
In February of this year, a UN Special Rapporteur on the rights of persons with disabilities said:
If assisted dying is made available for persons with health conditions or impairments, but who are not terminally ill, a social assumption could be made that it is better to be dead than to live with a disability . . . .
People should have the right to die with dignity but not the right to die because of the social stigma or lack of access to medical assistance or services.
Another major Charter concern outlined in the Legal Committee is the introduction of a new, different and more burdensome procedure for patients who are not at the end of life. Witnesses emphasized that the removal of safeguards is discriminatory. The opposition has also proposed a few amendments in the past few weeks which address key concerns with Bill C-7, all of which have been rejected by this government.
The first of many amendments recommended by the opposition is in regard to the rights and freedoms of our most vulnerable. Ensuring stringent safeguards are in place is a protective measure that must not be taken lightly. It is unfortunate that the Attorney General wants to remove the 10-day waiting period in the provision of MAID. The removal of the mandatory waiting period ensures there is no coming back from a life-and-death decision. Rushing existential decisions is not a reasonable approach to the vulnerable.
In the first annual report of MAID in 2019, 3.6% of the patients who made a request subsequently withdrew their request. That is 263 out of 7,336 who changed their minds. Leaving a window of opportunity for MAID applicants to change their minds is essential in preventing non-reversible decisions.
The opposition also recommended banning medical professionals from raising the topic of MAID to their patients. Doctors and nurse practitioners should implement strict structural conditions to ensure that vulnerable persons are well protected from death. Of the 6.2 million Canadians with disabilities, 1.6 million cannot afford the required aid, device or prescription medicine. The lack of access to necessary medical services should not be an acceptable eligibility for MAID. A discussion on MAID should only be raised by a patient, at which time a medical professional can present this option as a last resort — another protective measure that was rejected by the government.
Additional safeguards were presented to the government based on the views of all disability groups who opposed this bill as it stands today. Bill C-7 undermines their precarious position by removing the requirement for having two witnesses to sign off on MAID applications. Lessening the eligibility by only requiring one witness essentially compels and speeds up the death of patients rather than prolonging their life. Rejecting this recommendation works toward further expanding the eligibility of MAID by removing essential safeguards.
I had the privilege of participating in the Standing Senate Committee on Legal and Constitutional Affairs on November 27. One of the witnesses on that day was Catherine Frazee, who is a Professor Emerita in the School of Disability Studies at Ryerson University. As a disabled person, she is well versed in the discrimination and inequality projected onto disabled people. Her views against Bill C-7 was heard loud and clear by the committee, especially when she said:
Each time we step out into the public square, our presence is unexpected, our bodies are disrespected, and our ways of being are feared and pitied. We know this inequality in our bones, although it remained all but invisible to the drafters of this bill.
Professor Frazee’s witness statement was very moving and powerful. I’m certain I was not the only person who teared up that day. Professor Frazee’s statement explained so eloquently that the suffering of the disabled is not caused by their debilitating disease or illness but rather by social neglect. Her witness statement, along with 80 other testimonies from experts in their respective fields presented over a five-day period, left me with more questions than answers.
Indeed, this bill would give Canadians living with a chronic illness or disability a choice and dignity in death that they otherwise do not have in life. The ableist nature of our society can leave those living with disabilities feel like they were burdensome for their families, friends and society.
Spring Hawes, a woman who has been living with a spinal cord injury for 15 years, explains that:
As disabled people, we are conditioned to view ourselves as burdensome. We’re taught to apologize for our existence and to be grateful for the tolerance of those around us. We’re often shown that our lives are worth less than non-disabled lives. Our lives and our survival depends on our agreeableness.
This is in line with Dr. Ho’s concerns with Bill C-7. He says that in his 20 years of service as a physician, he has seen many patients with chronic diseases or illnesses who would have given up, feeling like a burden on their family or society. If MAID had been available at the time, they may have chosen that route prematurely.
Dr. Ho worries that people suffering from depression because of their circumstances or trauma may make a hasty or premature irreversible decision.
In addition, according to Krista Carr, Executive Vice-President of Inclusion Canada:
People with disabilities have historically been devalued and marginalized in Canada . . .
Including disability as a condition warranting assisted suicide equates to declaring some lives not worth living . . . .
We’ve all heard about Roger Foley, a 45-year-old with a neurodegenerative disease that left him hospitalized and unable to move and care for himself who believes in the right to an “assisted life.”
Mr. Foley shared that he had been coerced into assisted death by abuse, neglect, lack of care and threats. He said:
For example, at a time when I was advocating for assistance to live and for self-directed home care, the hospital ethicist and nurses were trying to coerce me into an assisted death by threatening to charge me $1,800 per day or force-discharge me without the care I needed to live. I felt pressured by these staff raising assisted dying rather than relieving my suffering with dignified and compassionate care.
Hospital staff failed to provide me with the necessities of life . . . . An expert who reviewed the case concluded a failure to provide necessities of life and gross negligence.
The committee also heard from Jeffrey Kirby, Professor of Bioethics at Dalhousie University. Dr. Kirby spoke at length about the importance of social determinants of health and how they are treated. An alarming reality was presented in his statement:
. . . there are inadequate integrated palliative care services across most of Canada, particularly the rural areas. Of course, the funding for mental health services is atrocious in terms of the burden of mental health illness there is in this country. The funding is actually disgusting really, in the levels of 3% or 4% to 10% per province or jurisdiction.
Based on the testimony we heard at committee hearings, the 86 written briefs and the endless emails and phone calls my office received on Bill C-7, a comprehensive review and debate is warranted. With suicide being one of the main public health emergencies of the 21st century, we must ensure that this bill does not promote suicide contagion.
May I remind you that the government has had 16 months to pass this bill, but we are now rushed to reach a consensus on complex legislation with important repercussions on the lives of Canadians who are already struggling to access necessary health services. Chronic illnesses and disabilities should not be a death sentence in Canada.
Therefore, I cannot support this bill ethically or in principle. I hope this bill goes back to committee for reconsideration and subsequently back to the other place. Thank you.
Honourable senators, I would like to start by thanking all senators who have already spoken on Bill C-7. Each of you have compassionately contributed to this very difficult debate. I appreciate and commend your courage to share your own perspectives and experiences on MAID. I have learned a lot from you, and I sincerely thank you for your informative speeches.
Honourable senators, I also rise before you today to speak about a matter of life and death. I rise today to speak about medical assistance in dying at second reading. As we all know, senators, this is a time of second reading, when we reflect on the bill before it gets studied further in committee, and then we will have more time to debate this bill at third reading.
MAID is literally a matter of life and death, of intolerable suffering, and freedom from indignity and pain. The implementation of the MAID regime, its safeguards, and most importantly, those it affects, are what Bill C-7 is studying.
MAID affects our most vulnerable, our most sick, but MAID is not a treatment option, nor should it be treated as such. It is intended as a last resort for people who are suffering from untreatable health conditions that are more often than not accompanied by severe suffering. It is for those like British Columbia’s Julia Lamb, who is waiting to receive MAID as “a large and looming timeframe to be under when suffering intolerably.”
MAID provides a choice for them: a choice to die with dignity, a choice to end their untreatable, intolerable pain. However, it is the person’s choice.
It is my opinion that MAID must be strictly patient initiated or person initiated, and not a choice of a health professional or family initiated. MAID is not intended to push people over the edge. It is intended to alleviate suffering and to empower people with choice over their lives in that way. Only one person can decide to consider it, and that is the person who is suffering.
A patient-initiated choice would also help to avoid making patients feel like their lives are not valuable or that they have no hope of bettering the conditions of their illness.
As was highlighted by Dr. Herx and several others, it can be devastating for a patient if their treating physician initiates the conversation of MAID.
Honourable senators, in 2016, Canadians chose to incorporate MAID in our legal system. They have chosen power over their lives, and it is our duty to make sure that, while we comply by making MAID accessible, we should ensure that we are not opening the door for many to try to take the lives of others without a cause.
As we think about how we protect individuals with disabilities, we are brought to other more marginalized groups; racialized, Indigenous and immigrant people highlighted some of the very serious concerns regarding their access to basic physical and mental health services, let alone MAID, in rural, urban or city environments. In all contexts, MAID should be regarded as a last resort.
Prior to a patient being eligible for a MAID review, they should have been afforded all available and adequate physical or mental health services for their illness. It is our responsibility as parliamentarians to ensure that the government is fulfilling the responsibilities of its sworn duty of care to all Canadians of all identities.
MAID is never meant to be for disabled communities. MAID is meant for a person suffering terrible, irremediable pain. Only then would they be entitled to MAID. I understand the challenges that disabled people are feeling at this point, but there are many safeguards, and we will study them at the committee.
Safeguards are another aspect of MAID that are of crucial importance and impact. MAID distinguishes between those whose death is reasonably foreseeable and those who are bound to continue a life of suffering with no foreseeable end. Like Julia Lamb, a fellow British Columbian says in her written statement about a 90-day waiting period imposed on people whose death is not foreseeable:
. . . if I choose MAid — the last days of life being not something of my choosing, and the drawn out pain and suffering I may endure because it is not determined as equal to those who are more timely in their manner of dying. A bill that is supposed to be a choice, to end feeling trapped and hopeless in unbearable suffering, instead may trap me within an excruciating 90-day waiting period.
MAID safeguards also impose a final consent for those whose death is not foreseeable, and about that, Ms. Lamb goes on to say:
Because my health is so compromised, there are several reasons why I might lose capacity and be denied my right to assisted death if I cannot waive final consent. After fighting for years for my rights, this is a heartbreaking possibility.
Honourable senators, we have heard so much about Bill C-7 in the last few days, but I feel that we should also hear statements from Canadians who have undergone the experience of MAID. Senator Bovey mentioned a little bit about Ms. Ruth Wittenberg. She writes:
I am writing to you today with a plea to support Bill C-7 before the Senate regarding medically assisted death.
My husband, Paul Jarman, was able to access a medically assisted death earlier this year. He had a 10-year challenge with bone cancer but was able to maintain a quality of life that worked for both of us. He was diagnosed with pancreatic cancer earlier this fall and made the decision to end his life while he was able to maintain his dignity and his control. He passed away peacefully, in his own home, with me at his side.
Senator Bovey mentioned other things she said, so I will not repeat that today.
I want to share with you another letter that Ms. Penny Mills wrote to me. She said that since the case of Sue Rodriguez, two other cases have come to the Supreme Court and won: Gloria Taylor and Kay Carter. She goes on to say, and these are her words:
Sue Rodriguez asked, “If I don’t own my body, who does?” Most of the safeguards for MAID have very little for people with ALS.
With ALS, we lose muscles a bit at a time. I have a rare variant of ALS, and my muscles seem to turn to pudding, whereas other ALS patients become paralyzed.
Our faulty throat muscles cause us to choke on our saliva, lose the ability to speak and swallow. Our legs lose muscles a bit at a time, also our feet, a thumb, a finger, a hand, in no particular order. We need a cane, a walker, a wheelchair, then a power wheelchair. If you live long enough, you may only be able to blink your eyes.
I want to stress that every person’s progression is different. That is why you can’t just put us into a LongTerm Care Home and expect a satisfactory situation. It wouldn’t be safe, especially as we’ve learned from Covid19.
She goes on to say:
One suggestion is to “Wait 10 days”. That means people like me, Sue, Gloria and Kay have to suffer being immobile, unable to eat/talk 10 more days.
I’ve known for 6 years I wanted Medical Assistance in Dying. Hardly a snap decision, Senators. I don’t know when, but when I KNOW, I’ll go. As Sue Rodriguez said, “If it’s not my body, who’s body is it?”
What I’m concerned about is we who can’t speak or write for themselves, but are denied MAiD or Advance Directives. That is so cruel. I wonder how many people would prefer death to being warehoused. What is the difference between them and a DNR?
She goes on to say:
People with ALS are in danger in Care Homes & hospitals because, so few medical workers know about ALS.
When I was in hospital with a broken hip some doctors came in to see me; I was such a novelty. ALS is so rare. I guess that’s why the Senator amendments don’t fit us. A nurse nearly broke my knee trying to straighten my leg that was in a spasm. Another one nearly killed me making me drink water while I was in a choking fit.
Honourable senators, she goes on for a while, and she’s saying, “it is my body, give me choice, and let me die when the time is right.”
Honourable senators, one of my final points is on final consent. Dr. Stefanie Green, President of the Canadian Association of MAID Assessors and Providers, who has been providing MAID for more than four years in Canada, brought this to our attention.
A 2019 survey of MAID providers suggested 85% of providers have personally experienced the situation where they walked into a room to facilitate an assisted death only to find the patient no longer able to provide final consent due to an unexpected loss of capacity.
Dr. Green goes on to say:
I can tell you from first-hand experience how horrible that situation is. Loved ones beg for the clinicians to proceed. It is agonizing for all, and I’m unable to appreciate who exactly is being protected by not proceeding with the previously planned MAID death. However, I’m absolutely clear on who is harmed.
Honourable senators, doctors take their duty to provide care very seriously. Over the entire process of the pre-study, not once did we hear a doctor say that they believed anyone should carry out MAID —
Senator Jaffer —
May I please have five minutes?
Thank you, senators.
Doctors take their duty to provide care very seriously. Over the entire process of the pre-study, not once did we hear a doctor say that they believed anyone should carry out MAID without careful and conscientious consideration of its impact.
Dr. Green goes on to say that she knows of not one doctor providing this profound, compassionate health care who has been prosecuted for carrying out MAID. That is a choice of the doctor.
Honourable senators, all of you who know me know that I’m a practising Muslim and I wear my faith on my sleeve. You hear me talking about my Muslim faith many times, but in 2016 I came to a decision that I am a practising Muslim and I am a parliamentarian as well. As a practising Muslim, I will do what is right under my faith. But as a parliamentarian, I have to listen to Canadians carefully, and I have to make the decision on what Canadians want and I cannot bring my faith into that decision because I have the honour to be a senator. As a senator, I have to listen to Canadians and serve Canadians. Thank you very much, senators.
Yes, certainly.
Thank you, Senator Jaffer. I was being anonymous about a letter we obviously both received. I did speak to my good friend Ruth Wittenberg last night. As you all know, I lived in Victoria for many years. My knowledge of this issue goes back to the 1980s, when Dr. Scott Wallace was a member of the British Columbia provincial legislature, and he was my doctor. He was a very good friend of Sue Rodriguez, so these were discussions on a philosophical basis back then.
After I moved back to Winnipeg, I was visiting an art collector who went to Switzerland — I can’t remember whether it was 2014 or 2015 — to get medically assisted dying because Canada did not have that in place yet.
Senator Jaffer, my question concerns many of these issues you’ve discussed, such as the timing, the disabled community and other issues that I’m conflicted on in this bill. I’ll be honest, I’m having trouble with aspects of the bill. However, with your legal knowledge and having been in this chamber for the 2016 debate, are the issues we’re discussing now new to the debate? I remember going back to the 1980s, 1990s and the early 2000s, when I wasn’t a parliamentarian, but just me as a Canadian taking in these issues, are they different now from what they were then?
Some of the issues are not different. I believe some of them are the same because you can hear from my voice, they are gut-wrenching issues. I can’t sleep at night. Am I making the right decisions? As each and every one of you are struggling, I am struggling too. We have to put our own feelings aside and listen to the pain of the people who are telling us.
So for me, one of the safeguards we had was the 10 days. Now we are hearing from the communities that the 10 days is a death sentence when they have decided. Many have phoned my office saying, “you don’t decide when I die, when I make the choice; that’s not your choice; let me make that decision.” It’s the same situation with the 90 days.
And, senators, just in case I forgot to say this, I had permission from both Penny Mills and Ruth Wittenberg to read their letters. But senators, I’m saying that this is probably the most important thing that you and I are going to decide, and all we can do —
No, I just have a few words.
All we can do is listen to the people. Thank you.
May I have five more minutes, please?
