Criminal Code
Motion in Amendment Negatived
February 10, 2021
Therefore, honourable senators, in amendment, I move:
That Bill C-7, as amended, be not now read a third time, but that it be further amended, in clause 1,
(a) on page 3, by deleting lines 19 to 34;
(b) on page 4, by replacing line 19 with the following:
“tion (4) — before two independent witnesses who then al-”.
Senator Marty Deacon has a question.
Thank you, Senator Batters. I certainly understand your passion and leadership in this area, and I think I understand the integrity of the concern around making sure that we’re as diligent as possible with safeguards and due process.
My question tonight is around the 10-day waiting period, if you don’t mind. I’ve read that many feel that this 10-day waiting period is cruel and unnecessary given that it extends patients’ suffering, and in some cases, they will even stop taking medication to ensure they’re of sound mind when the day comes to accept medical assistance in dying.
Through the work that you’ve done, I’m wondering if there are any numbers on the people who have used this 10-day period to change their mind. What I’m trying to get at tonight is this: I’m wondering if the risks — with respect to everybody — of extending suffering for patients outweighs the risks that some will change their mind in this 10-day period. Thank you.
Thank you for that question, Senator Deacon.
First of all, it’s important to note that there already is the provision in that particular 10-day waiting period subsection, and this would be retained with my amendment, that if there is any possibility of capacity or the ability to have informed consent lost during that time frame, they can already reduce that all the way down to zero. So that provision is already there and would remain under this particular amendment that I’ve proposed here.
As far as the number of people who have been asked or potentially already received MAID in Canada — or requested it — we just have received so little data from the government. First, as we’ve heard throughout our legal studies, there is the problem in the type of data — there are just minimal data that are really available to us to know very much about it.
We’ve found so far; there’s a desire to have increased data so we know more about these types of cases. A lot of times, as I did my speech, I quoted from Oregon or witnesses who have seen the more international experience, and for whom it has happened over a longer period of time. But that’s something I know others are trying to encourage the federal government to do — to have better data collection so that we can know more about these types of cases. But the ability to waive that period, that’s already in there. It would be retained.
For some, there might be a slightly longer — like a few days — period of suffering. However, I think the risk of somebody being put to death and potentially changing their mind if they were to have that reflection period, as opposed to; it’s already quite a short period of time. As I said, we were going to have a longer period of time. Some of us wanted to have a much longer period of time.
But it’s only 10 days. It’s a short period of time, and that’s why I think this is a reasonable safeguard. It was something Jody Wilson-Raybould thought was a reasonable safeguard, as did Jane Philpott, health minister at the time. They thought it was crucial to have those safeguards in place and make sure the most vulnerable people were protected, because that’s what we have to do. We have to look at that small — maybe small — certain number of people who might be affected in the worst possible dire consequences, that they may have been put to death but might instead have changed their mind.
On debate.
Honourable senators, I am opposed to this amendment that offers no additional protection to patients and could potentially add to their suffering.
The first part of the proposed amendment would aim to retain the current reflection period of 10 days for persons whose death is reasonably foreseeable, following the signing of their MAID request. In Bill C-7, the removal of the 10-day reflection period is based on the lived experiences of clinicians, caregivers, practitioners and family members over the past four years, who have told us time and time again that forcing someone to wait 10 more days — whose death is reasonably foreseeable and who has already been assessed and approved — only brings additional suffering.
I want to note that this is not an evaluation period. The current system already includes a mandatory reflection period between the approval of a request and the administration of MAID.
As Minister Hajdu told the Standing Senate Committee on Legal and Constitutional Affairs, it turned out that this reflection period was not fulfilling the original intent of giving the person time to reflect on their decision before receiving MAID. The experience of the past four years and the consultations showed us that, rather, the reflection period served only to prolong suffering for individuals who had already considered their circumstances very carefully and who had already taken significant time to reflect on their decision before requesting MAID. This was confirmed by several witnesses who appeared before the committee, including Dr. Alain Naud from Université Laval, who said, and I quote:
Patients who request medical assistance in dying don’t do so hastily, as an impulsive move. It’s a deliberate request, the result of a long-term decision-making process, and I would say that virtually 100% of patients who make a request have already discussed it with their circle, their attending physicians and their nurses. All of them are already aware of the decision.
During the consultation period to prepare the legislative response to the Truchon decision, experts and practitioners have consistently indicated that the mandatory reflection period causes patients to suffer unnecessarily while waiting for the procedure.
They have even noted that some patients chose to stop taking their medications to avoid the risk of losing their capacity to consent to MAID before they could receive the procedure.
The change proposed by Bill C-7 would only affect persons whose death is foreseeable. As I already mentioned, these persons seek MAID after careful consideration, and they are firm in their wishes.
Several witnesses to the Legal and Constitutional Affairs Committee during the study welcomed this measure.
The same reasoning applies to the reduction in the number of witnesses; the other part of the amendment. During the round table consultations held in January 2020, there was overwhelming support for removing the requirement for two witnesses. MAID providers and assessors have consistently reported that finding two witnesses who are not subject to the exclusions in the Criminal Code constitutes an access barrier for many individuals seeking MAID.
That is especially true for people living in care homes or other residences where their family or social networks may be very limited. When I agreed to sponsor this bill, this was one of the first things I asked the department’s representatives about. I wondered why the requirement for two witnesses was being removed and why it was so difficult to find two witnesses. I was surprised by this, perhaps because I am at a point in my life where I am very well supported. However, I was shocked that for many seniors living in rural areas, and also for all kinds of reasons, finding the required two witnesses can be a very significant barrier.
Furthermore, it is false to say that reducing the required number of witnesses to just one would weaken the protection of vulnerable people. That is very important, and I want to remind senators that the one and only role of the witness is to attest to the signing and dating of the MAID request. The witness plays no role in assessing the eligibility —
Thank you very much, Senator Petitclerc.
The amendment regarding the number of witnesses is supported by many individuals and groups who testified before the Standing Senate Committee on Legal and Constitutional Affairs. Dr. Yves Robert, secretary of the order at the Collège des médecins du Québec, said, and I quote:
We also support the amendment to the Criminal Code that would require the signature of a single witness only on a request for medical assistance in dying. This will greatly facilitate the request process.
In addition, Dr. Alain Naud, a clinical professor at Université Laval, said, and I quote:
The following aspects of Bill C-7 should be retained: the requirement that a request be signed before only one witness, who may be a caregiver, which is extremely important . . . .
In its brief, the Barreau du Québec said, and I quote:
What is more, under the bill, from now on, only one witness will be needed to sign the MAID request, as opposed to the two witnesses the law currently requires. In our opinion, these changes solve a significant problem encountered on the ground, namely the difficulty of finding witnesses who meet the criteria to act as such, particularly for more isolated individuals or those living alone.
Professor Jocelyn Downie from Dalhousie University said, “. . . reducing the witness requirement removes a burden on access that did not provide a compensatory benefit of protection.”
Dr. Joshua Wales, palliative care physician at Sinai Health said:
. . . I strongly agree that reducing the number of independent witnesses for the patient’s written request from two to one and allowing that witness to be a health care or personal care provider removes a barrier to access that many individuals experience, especially those who are more socially isolated. This change will result in more equitable access to MAID.
It is critical to understand that the only role of the witness is, as Senator Petitclerc just said, to confirm the identity of the person signing and dating their request. Witnesses play no role in determining whether someone is eligible for MAID or whether their decision is voluntary or informed.
For example, the Ontario MAID request form asks the witness to confirm the following, and only the following, before signing:
I am at least 18 years of age; I understand the nature of the person’s request for medical assistance in dying; the patient . . . signed the request for medical assistance in dying in my presence and in the presence of the other independent witness —
— when there are two —
I am signing under the person’s direction.
And that the witness is independent from the requestor and will not financially benefit from the requestor’s death.
That confirms, of course, the independence.
In short, the witness does not assess or confirm the requestor’s capacity to consent. That’s not providing any security whatsoever.
As for the removal of the 10-day reflection period, suffice to say that we have heard from many witnesses that this additional period often prolongs the suffering. For example, Dr. Stefanie Green, President of the Canadian Association of MAiD Assessors and Providers said:
In four and a half years, there has been no evidence this reflection period has safeguarded anyone from anything, but there is both subjective and objective evidence to suggest it has mandated substantial suffering.
Colleagues, there’s no need to prolong suffering, and there’s no justification for it. Thank you. I don’t support this amendment, of course, you understand. I invite you to vote against it. Thank you.
Do you have a question, Senator Batters?
I do. Would Senator Dalphond take a question?
You have a minute and a half.
I have a couple of questions for Senator Dalphond. First, you referenced what Senator Petitclerc said and what you repeated as the role of the witness. However, in my speech I indicated what the Department of Justice officials, whom I questioned when they were there to help us with the bill — and these are the people who draft the bill — said:
Our view would be that the role of the witness to the written request is both to confirm that the person signing the request is the person the request is about and to confirm that that person understands what it is they are signing and is signing it voluntarily.
That was something that Minister Hajdu did not seem to know when she testified, and both of you have indicated what she said. However, the Justice officials indicate something very different: voluntariness is something that the witnesses assess.
As well, would you agree that, with the increased number of people who are now allowed to be witnesses — including people who care for the patients in those care homes — under Bill C-7, it is much easier to find those two witnesses? Would you concede that? Thank you.
I refer to the form used by the witnesses in Ontario. I respect that the minister may have a different view, but the practice is in the field, and these forms are subject to the rules that have been adopted in Ontario for the witnesses.
Honourable senators, I rise today to speak in favour of Senator Batters’ proposed amendment to restore safeguards that have been unjustifiably removed from this legislation.
I am very concerned about the dilution of safeguards from our existing regime and the consequences of diluting those safeguards, particularly because we have been told by experts that we do not have any evidence to justify their removal.
Bill C-14 put in place a waiting period of at least 10 clear days after signing a request for medical assistance in dying. This request must also be signed and dated by two independent witnesses before MAID is provided. The purpose of that clear 10-day period has been to provide a period of time where the full implications of that decision should be considered, both by the patient and by the patient’s practitioners. This is to ensure confidence in the patient’s desire to receive physician-induced death.
Bill C-14 was focused on individuals who have a grievous and irremediable medical condition. Exceptions were incorporated into the legislation to waive the 10-day reflection period if the medical practitioners agreed that death was fast approaching or if, alternatively, an individual might soon lose the capacity to provide informed consent.
We know that, according to the Canadian Medical Association Journal, this waiting period has, in fact, been waived. On its website, the Government of Canada indicates that the purpose of the waiting period is to:
Provide patients ample time to reconsider their request and allow health practitioners to feel confident about the sustainability of the individual’s decision.
I believe that safeguards were very appropriate in that, while flexible, they reinforced the exceptional nature of what was being enshrined in legislation. Namely, that medical assistance in dying should be provided but that every effort would be made to ensure the patient fully understood the implications of his or her decision. The waiting period also enables a patient to be fully aware of the potential health care alternatives to assisted death.
The principle was that a person’s worst day should not automatically transition into being their last day due to a decision largely made in an atmosphere of pain and suffering. The 10-day reflection period that exists in our current legislation comes from the published work of Dr. Harvey Chochinov, who found that desire to die in the terminally ill fluctuates and often dissipates in two weeks. When Minister Hajdu was asked about removing the safeguard, she stated that often, when the formal request is made, this is after long, difficult conversations with families and physicians, and that when this decision is finally reached, waiting 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. Safeguards are put in place for the exact opposite reason: to prevent unnecessary and wrongful death in situations that are less obvious, where an individual does not have such a support system or is experiencing fleeting suicidal ideations.
Honourable senators, we would like to believe that adequate and equal care is provided to all patients in such circumstances. But we know from experience that this is not the case. Over 1,000 practising Canadian doctors recently signed an open letter in relation to noting that up to 70% of citizens nearing the end of life still have no access to basic palliative care services. Colleagues, I find it most disturbing that our answer to this problem now is that we will make medical assistance in dying easier to obtain, and that we will do them a favour by reducing the safeguards around any request that they make for that service.
As Dr. Leonie Herx of the Canadian Society of Palliative Care Physicians wrote recently:
Almost all of the patients I work with in palliative care have a reasonably foreseeable death, and so with the new law, the removal of the 10 day waiting period from time of request to receiving MAiD (medical assistance in dying) means that my patients, almost all of them, if they were to express a desire to die, could be offered MAiD, or request MAiD, and die that day.
So, in essence their worst day becomes their last day without any opportunity for healing.
This is extremely unsettling, honourable senators. Let’s not lose sight of the importance of safeguards in this legislation dealing with life and death. I hope you will join me in voting in favour of this amendment so the safeguards that have undoubtedly prevented unnecessary death can continue to serve this function under this revised regime. Thank you.
Are honourable senators ready for the question?
If you are opposed to the motion in amendment, please say “no.”
Those in favour of the motion and who are in the Senate Chamber, please say “yea.”
Those opposed to the motion and who are in the Senate Chamber, please say “nay.”
In my opinion, the “nays” have it.
I see two senators rising.
We have a 15-minute bell, so the vote will take place at 7:58. Call in the senators.
Motion in amendment of the Honourable Senator Batters negatived on the following division:
YEAS
The Honourable Senators
NAYS
The Honourable Senators
ABSTENTIONS
The Honourable Senators
