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

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

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

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

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

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

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

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

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

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

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

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

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

I’m sorry, but your time has expired.

Honourable colleagues, I will be very brief. I am opposed to this amendment.

I refer you once again to the code of ethics. As you know, the code of ethics governs the practice of a profession, the conduct of those who practise it and their relationship with their clients.

Section 24 of the Quebec Code of Ethics of Physicians protects physicians’ freedom of conscience while preserving the right of patients to receive health care and services, including MAID if they request it. This section states, and I quote:

A physician must, where his personal convictions prevent him from prescribing or providing professional services that may be appropriate, acquaint his patient with such convictions; he must also advise him of the possible consequences of not receiving such professional services.

The physician must then offer to help the patient find another physician.

With regard to medical assistance in dying, section 31 of the Act Respecting End-of-Life Care states that any physician who refuses a request for medical assistance in dying must notify the authorities responsible, who will take the necessary steps to find a physician willing to deal with the request. This section ensures that the rights of both the patient and the physician are respected. Furthermore, the physician-patient relationship is not broken, as Dr. Yves Robert, secretary of the Collège des médecins, stated:

The patient will still need medical follow-up for everything that does not concern that particular procedure.

Another consequence of this amendment, whether intended or unintended, is that it would criminalize prescriptions that doctors send to pharmacists. In general, a pharmacist must prepare the drugs prescribed by the doctor. Would that mean, in the case of MAID, that the pharmacist is facilitating the procedure? The doctor and the pharmacist would then be guilty of an indictable offence for issuing a prescription in accordance with their code of conduct. Once again, these professionals would be criminalized.

Professional associations are corporations under the law. Are we going to prosecute them for abiding by professional codes of conduct and codes of ethics?

That is why I urge you, honourable senators, to reject this amendment, which could harm the practice of medicine in Canada and which infringes on areas of provincial jurisdiction.

Thank you.

Could I start it after the break?

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

Thank you.