Criminal Code

Bill to Amend--Message from Commons--Motion for Non-Insistence Upon Senate Amendments and Concurrence in Commons Amendments--Debate Continued

March 16, 2021


Hon. Carolyn Stewart Olsen
[15:00]

Honourable senators, I rise today to speak to the message received from the House of Commons on Senate amendments to Bill C-7, dealing with the final consideration of an extensive overhaul of Canada’s legalization of medical assistance in dying.

As a retired emergency room nurse, death and suffering are not unfamiliar to me. You can believe me when I say I’ve seen some of the worst things that can be done to a person and perhaps some of the worst things people can do to themselves.

Since MAID is now the law of our land, our job here as legislators is to ensure that Canadians have reasonable, safe and humane access to this most difficult of choices, but that’s not our only job. I consider that by tweaking and returning this amendment as accepted, I do not believe the House of Commons has shown the common sense we expect from it, nor does it, I believe, reflect the majority of Canadians’ opinions.

As I followed the debate on Bill C-7 and its amendments, the concern at the top of my mind was to be sure that we can deliver the legislation that strikes an appropriate balance between protecting Canadians and satisfying the decision of the lower court. We must also protect those Canadians for whom all reasonable treatment options may not have been explored and those for whom, for whatever reason, may not be able to make an informed choice.

Unfortunately, I believe we have now gone down a road to considering mental illness as sufficient by itself for grounds to open the door to a medically assisted death. This is troubling to me because mental health is not an exact science that can be compared in the same way as how we assess our ability to treat people who are terminally ill. As one physician noted in the Journal of Ethics in Mental Health:

. . . I am not an agent of death. By virtue of vocation and oath I am an agent of hope. I have promised to do my best to relieve physical and emotional suffering, and when my art, skills and tools are believed by my patient to be inadequate, and life is felt to be no longer worth living, then each person can signal their answer to the question, “to be or not to be.”

If we approve mental illness as a sole precondition for seeking medically assisted death, we have opened the door to death being prescribed as the treatment for desiring to die. This imposes significant ethical challenges for many health professionals.

The government’s argument is that these changes ensure the quality of treatment as we are all owed, but I question if we have adequately considered that, for many, the real issue is not access to an assisted death but access to assisted life.

Colleagues, access to psychiatric care, to palliative care, to pain clinics, access to sufficient social assistance, these are all things that differ widely depending on where you live in this country and these are all things which have a large role in determining if a patient will choose MAID.

The Canadian Mental Health Association concurs. They told the Senate in November 2020 that until the health care system can adequately respond to the needs of mentally ill Canadians, assisted death should be off the table. The question of quality of life is not a simple binary situation that begins with living and ends with death. Governments have a large tool box of decisions available to them to improve the options accessible to those who are struggling with mental illness, and we should be encouraging them to work harder to utilize these powers.

The Centre for Addiction and Mental Health, Canada’s largest mental health teaching hospital, established a working group for considering MAID, and after two years of deliberation — that period sounds familiar — they concluded that we should not allow MAID to be accessed by those suffering solely from mental illness.

As I noted earlier, mental health is not an exact science. The evidence is far from clear that mental illnesses are incurable.

In a 2017 policy paper, CAMH notes:

The grievousness of an illness is subjective and there is no doubt that mental illness can be grievous to individuals. . . . The irremediableness —

— the inability to treat or cure an illness — “on the other hand, is an objective determination which should be based on the best medical evidence available.”

CAMH further concludes that there is generally no evidence to suggest that there is an objective threshold which we can refer to that would say, “Here’s a mental illness that is impossible to treat or cure.” Given the deeply personal experience that many patients have with mental illness, it will be difficult to set a standard for any one person that can predict a trajectory of decline. Someone who seems impossible to treat today may be curable tomorrow.

An academic piece dealing solely with experience of mental suffering concurs by saying:

. . . we believe that in practice it is highly unlikely that euthanasia would ever be a proportionate response to mental suffering, and that allowing it would amount to an unacceptable medicalization of problems that are not medical in nature.

Senators, I cite these quotes because they have been produced over a two-year period by people who are objective, know the subject matter and have delved deeply into it already. So I’m not sure that we can do better than the amendment that we have sent. That’s why I cannot accept this message.

The objective of MAID in its original form was not to remove people from treatment who could be cured, but to provide a humane option for those who have no hope of medical relief from their condition. The problem of opening MAID to those suffering solely from mental illness is not unique to Canada. Oregon’s 2008 Death with Dignity Act guidebook noted that:

. . . the practice of the Oregon Death with Dignity Act through 2006 did not adequately protect all mentally ill patients from receiving prescriptions for lethal medications and there is need for more vigilance and systematic examination . . . .

In Belgium, a petition was signed by more than 360 doctors and academics who were calling for tighter controls on euthanasia for psychiatric patients. This also reflects the position of the American Psychiatric Association, whose December 2016 position statement noted they do not support psychiatrists prescribing or administering, “any intervention to a non-terminally ill person for the purpose of causing death.”

Senators, returning to my experience as a medical professional, it was always my duty to offer a patient the best care and treatment available. It’s also my duty to treat them with dignity and respect their informed choices about their health. I do not see evidence that would suggest that mental illness can be considered, by itself, an end-of-life condition. The science on this has a long way to go before we can say with any certainty that there is a consistent, objective standard we can apply.

As legislators we are here to protect Canadians, and sometimes that means protecting those who can’t protect themselves. We should reject the inclusion of mental illness — and I truly wish the House of Commons had done so — as the sole determinant for a medically assisted death until the original legislation has been reviewed by the promised committee and we have more certainty that the science has been settled. I cannot support the message from the House of Commons. Thank you, senators.

Hon. Frances Lankin
[15:10]

I’m pleased to have the opportunity today to speak on the message from the other place with respect to Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

I appreciate the speech that Senator Stewart Olsen just made. I think that the thoughtfulness with which all senators have approached this from differing perspectives has been contributory to the quality of the debate and to the deliberation to think through and consider these things.

I have given this a lot of thought and I’ve arrived at a different place in that I do intend to vote to concur with the message from the House of Commons and I want to set out a couple of reasons why. None of that negates the importance of the other views that have been put forward or the integrity of the arguments that are being made.

Just before I go into my reasons for this, many other speakers have spoken words of thanks to all who have been involved, from staff to many senators, and the witnesses. I want to associate myself with those comments and offer my sincere thanks to all who have done a lot of really important work on bringing this forward and bringing forward what I think has been an incredibly important and importantly constructed debate.

For a moment, let me comment on that. Let me also thank the leaders, facilitators and the Government Representative in the Senate in their discussions for having agreed to program this bill for deliberation in the Senate Chamber in such a manner as to have continuous, flowing debate, where we can hear each other, where we can respond, where we can ask questions at the time and where we will all know when it will be on the agenda. It just makes sense. In all my years in the Ontario legislature, we always knew what was coming up and how long it would be debated in any given week. That doesn’t mean we knew what the conclusion date of a debate would be, but rational and coherent deliberations were an important part of how we approached this.

I personally am someone who believes that all of our bills should be scheduled in such a way, through discussions with the leadership group. I thank them very much for approaching this bill in this manner and I put a plug in for the future, hoping they will do so more frequently. I think it enhances the quality of debate and deliberation greatly.

When we come to debate on a message from the House of Commons, for me, there are very different levels of the bar that have been set, or different guideposts we must consider as we come to a conclusion. One might be quite opposed to certain provisions of Bill C-7 from a lot of perspectives. For some it’s conscience or religion; for some it is, as the previous senator spoke to, their experience, background and profession. For some it’s personal. There are lots of reasons why we may support or object to any of the policy intents of the bill. That has been well deliberated and well talked through, and in the end we don’t have a unanimous view of this and neither do Canadians. That’s not to be expected and it’s not to be a concern that we don’t have a unanimous opinion. Of concern, and the threshold we’ve met, is we have had a very extensive debate of those issues.

For example, on the issue of physician conscience, we have debated that. We have come to a conclusion. It is not, at this point in time, a matter of debate or deliberation again as to why we would accept this message or not. I’m not for a minute suggesting that someone in the Senate who has a moral or conscious objection not have their vote guided by that, but it is not within the bar or the guideposts of what we look at when we look at this message and we’re determining how we might vote on this message. Another example might be the safeguards. For some the safeguards are sufficient and for some they’re not. I personally voted for Senator Batters’ amendment to restore the 10-day reflection period. That was defeated in the chamber. I disagree with that decision of the chamber but it’s not part of what we’re voting on today and that has been determined by our chamber.

One area where it’s not quite that simple is when you look at the issue of constitutional or Charter arguments. I was fortunate enough to be a member of the Senate when we debated Bill C-14, the predecessor bill establishing the medical assistance in dying provisions within the Criminal Code, or updating them to create the regime of medical assistance in dying. At the end of the day, when senators objected based on constitutional and Charter reasons to the restrictions or constraints that were being put around accessing and eligibility for MAID focusing on the qualifiers of reasonably foreseeable death or terminally illness, many of us felt that would run afoul of the Constitution and the Charter, given the Supreme Court ruling that had directed us in the first place and set us down the road of establishing Bill C-14 and establishing MAID.

It was a very strong feeling. And when the message came back rejecting that amendment from the Senate, it was very difficult to come to a determination of how far we could push that. I’m not going to use the language that some people do about ping-pong back and forth. This is a serious shared responsibility between two chambers of Parliament, the two components of Parliament. There are different roles that we play and different emphases of what we put our thinking towards or our determination-making guideposts.

In this case, in Bill C-14, it was such an issue of concern that we struggled as a Senate. In the end, we agreed to accept the government’s assertions or their message back. In doing that, we left open the question of whether or not that constitutionality in fact would be met. Many of us predicted that we would see a court decision like Truchon, which would bring us back to this point and it has. But is wasn’t for sure. We never know what courts will rule and in that case, I think quite inappropriately, the Minister of Justice at the time — before we even finished our deliberation and voted, sending the bill back to them with amendments — cut out the possibility of considering that amendment. So I don’t believe they took into account what we had to say, but I do believe they were, from the beginning, asserting that this was constitutional. In keeping with that, the minister decided to prematurely, in my view, announce that.

What we have before us is slightly different. The government accepted our amendment about the delay in coming into force on the provision of mental health as the sole condition that would prevent eligibility. They accepted our amendment. They extended the suspension of the coming into force from 18 months to 24 months. I actually agree with them. I was more comfortable with that. The amendment we passed was 18 months. I believe there is time for much important work to be done during that period of time.

I also say it’s different because here we don’t know exactly what would have happened had this made it to the Supreme Court. This was a Quebec court ruling. It was one judge. There wasn’t a reference, for whatever reason, after. So the question is even more open, in my mind, for Bill C-7 than it was for Bill C-14 on the constitutional grounds, and therefore I am prepared to accept the government’s decision on this and, in fact, as I said, they have gone a long way to meet our concerns, going further than we did.

I’m very disappointed that Senator Wallin’s amendments have been rejected. I agree that it is a complex issue, of course, but this has been hammered out in provinces around consent to treatment legislation and around capacity to consent. All the elements of what is required have been determined provincially. We need to bring that together and apply it to the actual medical assistance in dying. But as I said in my third reading speech, there’s a great difference between the processes that are in place, federally and provincially, as they stand now, and we don’t have access to this under the federal Criminal Code at this point in time. But there isn’t much difference, except the inhumanity of saying a person can refuse treatment and can, as in my experience with family, both starve to death and deprive themselves of hydration, as opposed to seeking medical assistance in dying. However, we will have the opportunity to deal with that in this study. I look forward to and hope I will be able to join that committee and be part of this.

Your Honour, I will wrap up with those comments to assert once again that I support the motion of concurrence with the message from the House of Commons. I appreciate that, in a minority government, the government and parliamentarians in the House of Commons have gone a long way to listen to and respond to the issues raised by the Senate. I am pleased that this is another step forward, but there is still much work to do. Thank you very much.

Hon. Denise Batters
[15:20]

Honourable senators, what Parliament has done with this assisted suicide bill is shameful. The Trudeau government, supported by the Bloc Québécois, halted debate after only seven and a half hours of debate on a Senate amendment to allow access to state-sanctioned suicide for people suffering with mental illness. Because mental illness as a sole underlying condition had been specifically excluded from medically assisted death in the original Bill C-7, the House of Commons had not previously studied or debated the issue at all. It is reprehensible that the amount of House time devoted to such a monumental change in our country’s social policy is less than one day’s work shift for many Canadians.

This entire debacle illustrates that we have a Prime Minister who is governing without a moral compass, leading a cabinet of ministers more interested in ducking their heads to keep their jobs than they are in standing up for Canadians. In the same week Prime Minister Trudeau breathlessly celebrated International Women’s Day, and his government held a two-day virtual summit on women’s issues, he forced through this extremely harmful amendment that will disproportionately affect women. With this mental illness amendment, many vulnerable, mentally ill women in Canada will have access to the guaranteed lethal means to end their lives instead of being provided the support and help to live and thrive.

While we’ve known for a while that Justin Trudeau is a fake feminist, this government’s mental illness amendment also proves he’s a fake mental health advocate. I guess we shouldn’t be surprised. When Justin Trudeau was an MP, he charged local mental health associations $20,000 a pop as his speaking fee. This is horrendous, especially since he was an MP and speaking to groups like that about important issues of public policy is actually part of his job.

His Liberal caucus members followed his lead, including those who had previously won national mental health awards: Carolyn Bennett, Sean Fraser, Patty Hajdu, Seamus O’Regan, and even the Chair of the Parliamentary Mental Health Caucus, Liberal MP Majid Jowhari. They all fell into line to vote against people with mental illness when their political fortunes in Justin Trudeau’s Liberal caucus were on the line.

To add insult to injury, Prime Minister Trudeau forced through this amendment on the COVID National Day of Observance and the anniversary of Canada’s ratification of the UN Convention on the Rights of Persons with Disabilities, a convention which three UN human rights experts, including two Special Rapporteurs, told us Bill C-7 violates. You can’t even make this stuff up.

Bill C-7 betrays so many groups of people that Prime Minister Trudeau likes to pretend he supports, including women, Indigenous peoples, persons with disabilities and Black and racialized Canadians. And now the Trudeau government has added people with mental illness to the list. This amendment will be devastating for these vulnerable people.

When Bill C-14 was introduced five years ago, the Trudeau government was forced to stand down on including mental illness in that bill. That was, of course, when Jody Wilson-Raybould was justice minister and Jane Philpott was health minister. When those two ministers were ousted from the Liberal cabinet, it seems that courage and common sense left with them.

Instead, we have an activist, expansionist justice minister, David Lametti. He voted against Bill C-14 because he felt it didn’t go far enough. When asked about this issue in a recent media interview, he stated that, 30 years ago, he clerked for Supreme Court Justice Peter Cory, who was a dissenter in the Rodriguez assisted dying case. Clearly, this formed a key part of Minister Lametti’s early legal philosophy — this has been his mission for 30 years.

It did strike me as odd that Minister Lametti would not hit lob ball questions when I asked him to defend the constitutionality of the mental illness exclusion in Bill C-7. I defended the constitutionality of that part more vigorously than he did. He also failed to correct the GBA+ gender analysis of the bill. And then, miraculously, the majority Trudeau-appointed “independent” Senate amended the bill to expand the boundaries for assisted dying much, much further than originally expected. Lickety-split, the amendments rammed through the House of Commons in only seven and a half hours.

Prime Minister Trudeau used the supposedly independent Senate to play the heavy for what he and Minister Lametti wanted to do — radically expand assisted suicide.

During and after last fall’s pre-study on Bill C-7 at the Senate Legal Committee, many ISG senators were opposed to the bill on behalf of persons with disabilities, Indigenous peoples, Black and racialized minorities and people with mental illness. But, by February of this year, it was a whole different story. All of a sudden, ISG senators who had been dead set against expanding assisted suicide were open or at least resigned to it.

Even though many ISG senators had raised numerous concerns during the pre-study, almost the only amendments proposed by the ISG were minor ones, with the notable exception of Senator Kutcher’s 18-month sunset clause on the mental illness exclusion.

On the first day we discussed amendments on Bill C-7 in the chamber, Senator Kutcher spoke first and moved his sunset clause amendment before we had even delivered our general speeches on the theme of mental illness — an order that made little sense. But it served the Trudeau government’s purpose of framing the debate about MAID for mental illness and ultimately produced the outcome the justice minister had wanted all along: expanding assisted suicide to people suffering with mental illness. The ISG sponsor of the bill and the Leader of the Government in the Senate stared at the floor when the time came to defend the mental illness exclusion in the legislation. Curiouser and curiouser!

The government has played fast and loose in its communication about the studies on mental illness it promises once Bill C-7 is passed. It is shocking that the government is opening access to MAID for those with mental illness before they have even studied the issue. And while the original Senate mental illness amendment was open-ended, the government amendment before us today is much more prescribed. This makes it crystal clear that the expert panel will not determine whether to expand MAID to include mental illness but rather how to include it — a significant difference.

The government has used parliamentarians’ confusion on this issue to its own advantage, to the point where I think many MPs and senators aren’t even clear on what they are voting on. When I asked government leader Gold to clarify this for us yesterday, he couldn’t — or wouldn’t — even after three separate attempts.

The Bloc Québécois, who propped up the Liberal government to invoke closure and ram the government mental illness amendment through the House of Commons, didn’t understand what they agreed to, either. In a press conference, BQ leader Yves-François Blanchet indicated that any debate about the mental illness amendment would be sent to an ad hoc committee. Other Bloc MPs stated their completely mistaken belief that the 24-month sunset clause would be used to determine whether mental illness would be included. Justice Minister Lametti’s responses have been highly evasive on this topic, trying to placate what I have reliably heard was a large number of Liberal backbenchers extremely nervous about his mental illness about-face.

So I ask you, honourable senators, in voting for this amendment to expand access to MAID, are you 100% certain what you’re voting for? As with assisted suicide, there are no do‑overs here. Make no mistake, this amendment will not give parliamentarians additional time to discuss whether to expand MAID for mental illness; it will only give us a “how to” manual. But the impact this bill will have on vulnerable Canadians, especially those suffering with mental illness, will be immeasurable and irreversible.

Some senators maintain that medical assistance in dying and suicide are completely different. I totally disagree. The only difference is that suicide is taking one’s life by one’s own hand, and MAID leaves the taking of one’s life to a medical practitioner. As Dr. John Maher said:

Those who claim suicide is impulsive and violent, while MAID is well thought out, peaceful, and dignified, are arbitrarily redefining what suicide is. . . . Suicide is taking steps to cause your own death, whatever the steps.

An article on the National Right to Life News website says:

75% of people plan their suicide, and many are completed with care and consideration of the impact on first responders and others. The characterization of all suicides as compelled, impulsive, and violent is factually wrong and perpetuates media stereotypes. What is clear is that suicide is a raw agony for loved ones. The trappings of medical comfort and the mutual pretense of moral exoneration that the staging of the MAID event promises cannot diminish this sorrow. In fact, it can serve to inflame the wound through the betrayal by both medicine and state.

I am entirely unconvinced MAID for mental illness would be, as some senators have proposed, “better” for families. I know all too well what it is to be a family survivor of suicide, and I can assure you my grief would not have been any less agonizing if medically assisted suicide had been an option for my own husband. I’m sure I would have blamed a horrible, uncaring government and incompetent medical practitioners for facilitating death as an option for him.

A few weeks ago, I did an interview about the expansion of assisted suicide for mental illness on the Saskatchewan talk radio call-in show “John Gormley Live.” We heard from people who had suffered from mental illness. They would have accessed MAID then if it had been made available, but now they have recovered and live fulfilling lives. Callers like Tom said:

If I choke up a little talking to you, stick with me . . . I’ve suffered with mental illness for close to 40 years. I’ve contemplated suicide more than once. It’s not an easy place to be . . . There’s times when, yeah, I really wish it was an option, and there’s times I’m glad it wasn’t because I might have taken it.

Another listener, Erica, said:

I pulled my car over and I’m texting and I’m in tears. As a 20-year-old young woman, I became incredibly mentally ill. I was hospitalized for months. . . . I went from a young woman who had her life ahead of her to someone who lost her family because they could not care for me. . . . One therapist mentioned I may never live independently again. . . . I had no will to live. And then I found the right treatment and the right medication and a reason to live. Twenty-five years later, I live a life of gratitude. I’m a good mother to my children. I have two degrees. I’m employed successfully. I own a home . . . I have not fallen ill since I received my proper treatment.

Jeff texted:

I am totally against the bill to allow assisted suicide for the mentally ill. I’m now afraid for my son. Several years ago, he begged us for months to take him to Europe to end his life. It was legal in some countries then. He’s tried different meds. He’s now relatively stable. If he has a relapse or goes off his meds, which often can happen, he now has this as an option??

Another listener, Lorne, emailed me to express his frustration. He said:

I went to my doctor to get a referral to seek some help with my depression. He increased my dosage of meds.

Took a month to get a phone call from a counsellor, which was today. They called and cancelled the appointment. In person appointments are not on with COVID.

The intake worker said to see a psychiatrist is months down the road and could not give me a date.

And then the government wants to kill people like us??

These are the people I’m standing up for on this issue. These are the voices I always try to bring to this debate. These are the people I will never stop fighting for. So now that Parliament has opened Pandora’s box, where is this heading?

Very few jurisdictions around the world have approved MAID for mental illness, but, of those that do, depression and anxiety are often cited as leading reasons for access. Psychiatric MAID in the Netherlands has been granted for patients who have a variety of psychiatric conditions, including substance abuse, eating disorders, autism, prolonged grief, obsessive compulsive disorder, kleptomania and hypochondria. In one study, 56% of psychiatric patients had refused at least some treatment. In 2019, 34 cases of euthanasia were performed simultaneously on both members of a couple.

In case there’s any doubt where this issue is going next in Canada, Minister Lametti stated recently, “. . . we are going to go ahead with the mental illness issue and the minors issue at the next stage.”

“The minors issue”? The next frontier is children. It’s shocking.

There is no doubt in my mind that Bill C-7 will be found unconstitutional because it is discriminatory to persons with disabilities. We’ll see if Minister Lametti accepts the next legal challenge to the constitutionality of this bill from a lower court judgment on that basis as readily as he accepted the Truchon decision.

Honourable senators, I woke up the morning after the House of Commons passed the assisted suicide bill, Bill C-7, last week, and I thought, “Was that a nightmare? Did that really happen last night?” I turned on CPAC, and it was broadcasting the Senate Legal Committee hearings on this bill. On the screen, I saw the face of witness Jonathan Marchand, a person with disabilities who compared his life in a long-term care home to that of an inmate in prison. He implored us not to pass this bill, given that it will discriminate further against Canadians with disabilities by giving them easier access to a certain death than the supports necessary to live.

Seeing Jonathan’s face made me even sadder. Not only has Parliament failed Jonathan and millions of Canadians like him by passing Bill C-7, but this chamber — and now the House of Commons — have blown this bill wide open by expanding assisted suicide to include Canadians with mental illness.

Honourable colleagues, if you cast your vote to pass this bill, I hope you will stop and remember the faces of the many Canadians you are turning your back on. You want to provide Canadians with a beautiful death, but why not give them the means to a beautiful life instead? Assisted suicide might end the chances of life getting worse, but it also eliminates the possibility of life ever getting better. We can’t give up on vulnerable Canadians. Please don’t vote to sunset their lives.

Thank you.

Hon. Gwen Boniface
[15:35]

Honourable senators, I rise to speak in support of the message in Bill C-7.

I will be brief in my comments. I believe we have made some progress for senators and the Senate alike.

All Senate amendments are being addressed in some way in the message. Although the government didn’t accept Senator Dalphond’s amendment to clarify the language, they are creating an independent review, as he stated yesterday, which will encompass his concern.

In respect to the amendment on advance directives, Senator Wallin covered that eloquently yesterday; I don’t need to repeat it.

The other three amendments sent to the other place have since been accepted by them, though those have since been further amended.

No matter how you look at it, I believe the government has taken Senate concerns into consideration. I want to commend senators on the job they have done.

While the message isn’t exactly what I wanted to see, and I’m sure there are others who share that view, the crux of our issues have been addressed. Simply put, we sent our concerns to the House of Commons, they took those concerns under consideration and accepted some of what we put to them.

I will now speak specifically about the amendment to the review process. As you know, I seconded Senator Tannas’s amendment calling for a tight timeline to review the Criminal Code provisions. After hearing from 81 witnesses at our pre‑study, and another 64 witnesses during the study of the bill itself, it is clear that more conversation needs to occur, especially since the parliamentary review set to commence in June 2020 was not initiated.

The detailed changes the government made to Senator Tannas’s amendment, in my opinion, show their willingness and determination to strike a joint committee and get the parliamentary review rolling. Clearly, the government has heard that call and the call of many witnesses and has taken it seriously.

As senators will recall, the amendment initially brought forward by Senator Tannas proposed a few things: a joint committee consisting of 5 senators and 11 MPs; 1 chair position for a senator; a 30-day timeline for the committee to be established after Royal Assent; and a reporting requirement 180 days, at the latest, after the date on which the committee is established.

The government accepted this joint committee idea but reduced the number of MPs from 11 to 10. This is proportionally better for senators, and I agree with this change. There remains a Senate co-chair on the joint committee, and the establishment of the committee is unchanged at 30 days after Royal Assent of Bill C-7.

The government did change some of the provisions in the review. They added particularities for the number of MPs per caucus and quorum requirements for votes or receiving evidence. As for the Senate, we are to determine our own membership. They also extended the reporting deadline to one year rather than the 180 days proposed in Senator Tannas’s amendment. I believe this is acceptable, as I suspect they want to have the parliamentary report in their hands as an informational tool to help with the drafting of whatever new provisions will go forward.

Following on Senator Tannas’s question to Senator Petitclerc yesterday, I am disappointed that they did not accept the clause which would have ensured that future governments would continue the review. The biggest change to the review provisions can be found in the newly written 5(1), which states:

A comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application, including but not limited to issues relating to mature minors, advance requests, mental illness, the state of palliative care in Canada and the protection of Canadians with disabilities must be undertaken by a Joint Committee of both Houses of Parliament.

This new wording is certainly welcome because it broadens the review to include those study topics found in the previously mandated Bill C-14 review provisions. Basically, it is bringing the immensity of that review forward into Bill C-7, including palliative care, which we heard a lot about. However, this time it comes with a firm timeline to begin the review, as well as the composition of the joint committee.

You will also note that the review includes Canadians with disabilities, which is an important addition. This is tighter than the review as drafted in Bill C-14, in my mind, and we now have a clear timeline and many critical topics to study. This is exactly the impetus for this amendment. Honourable senators, we asked for a vehicle and we now have it.

As Senator Gold stated in response to Senator Tannas’s amendment in previous debates, a Senate-initiated review could have been accomplished, and he made inquiries to that effect. However, I think that a joint committee is a better route to take. Both houses of Parliament have put hours upon hours of work into Bill C-7 specifically, and MAID more generally. This is especially the case since any amendments we see to the MAID regime going forward will be, in part, based on the work accomplished during the review, and any potential legislation down the road will likely be debated in the House first. A joint committee process speaks more to our complementary function than a Senate-run special committee with no involvement from our elected colleagues in the House.

Senators, we may not see another instance where our concerns are addressed as we see here today. This is a difficult, divisive and challenging subject that evokes many contrasting views both from within the chamber and also from Canadians. We, the Senate, have had some of our concerns addressed. Let’s allow the work ahead to begin. Thank you, meegwetch.

[15:41]

Honourable senators, I rise today to speak to the message from the other place on Bill C-7, An Act to amend the Criminal Code (medical assistance in dying), and to provide reason as to why I cannot support it.

Our primary duty as parliamentarians is to examine, debate and, if necessary, amend legislation. While we do so, we must take into consideration two important components of a bill: its principle and its scope.

The “principle” is the “object or purpose which the bill seeks to achieve.” According to both the House of Commons guide to amending bills and Senate Procedure in Practice:

The principle of the bill is fixed when the bill is adopted at second reading. Any amendment contrary to the principle of the bill is inadmissible.

The “scope” of the bill would then be related to:

. . . the parameters the bill sets in reaching any goals or objectives that it contains, or the general mechanisms it envisions to fulfil its intentions.

As Speaker Kinsella reminded the Senate on December 9, 2009, in a Speaker’s ruling, which has guided the Senate many times since:

An amendment must respect the principle of the bill it seeks to amend, must be within its scope, and must be relevant to it.

This principle is enshrined on page 141 of Senate Procedure in Practice, and it states:

It is a fundamental principle that “[a] committee is bound by the decision of the House, given on second reading, in favour of the principle of the bill, and should not, therefore, amend the bill in a manner destructive of this principle.”

In my own second reading speech on Bill C-7, I outlined the historical context that led to the introduction of this piece of legislation and urged the Senate to remain focused on the sole purpose of Bill C-7, as a response to the Quebec Superior Court decision. The task before us was clear: How to comply with the Truchon ruling in a way that respects the autonomy, liberty and dignity of competent individuals who suffer from grievous and irremediable disease and at the same time protects the most vulnerable.

Yet, over the course of the last few weeks, we have moved significantly beyond this task and introduced amendments that can be said to exceed both the principle and the scope of the bill we were confronted with in Bill C-7.

Honourable senators, changes that will significantly alter Canada’s 2016 prescribed MAID regime require serious examination and study. It is for this reason that we had amended Bill C-14 to include two important provisions:

The first is an independent review led by the Minister of Justice and the Minister of Health on issues relating to requests by mature minors for medical assistance in dying, to advance requests, and to requests where mental illness is the sole underlying medical condition.

The second provision is the establishment of a committee, either in the Senate, the other place, or both houses of Parliament, five years after the day on which this act received Royal Assent, designated to review the provisions of Bill C-14 and the state of palliative care in Canada.

Honourable senators, it is important to note that the first provision has already been completed.

On December 12, 2018, the Council of Canadian Academies released the three final reports of the expert panel, one on each type of request: The State of Knowledge on Medical Assistance in Dying for Mature Minors; The State of Knowledge on Advance Requests for Medical Assistance in Dying; and The State of Knowledge of Medical Assistance in Dying Where a Mental Disorder is the Sole Underlying Medical Condition.

The expert panel’s final reports reflect a broad range of knowledge, experience and perspective from health care professionals, diverse academic disciplines and advocacy groups. These reports were meant to form the basis of the statutory five-year review that was to begin in the summer of 2020.

Honourable senators, we cannot ignore, nor abrogate, our responsibilities as parliamentarians, as legislators. We must review the three final reports of the expert panel released by the Council of Canadian Academies and feel assured, first of all, that we have met our obligations according to the provisions of Bill C-14.

Amending a new piece of legislation to enforce an authority given by an existing piece of legislation — in this case, the statutory five-year review of Bill C-14 — in my mind undermines the authority of Parliament and sets a dangerous precedent.

Colleagues, it is for this reason that I did not support Bill C-7 as amended by the Senate at third reading, and why I cannot support it as it is written today in the message from the House. Thank you.

Hon. Pierre-Hugues Boisvenu
[15:47]

Honourable senators, I’m pleased to rise again to speak to the message from the other place in response to Bill C-7 on medical assistance in dying. I want to note that we’ve had excellent debates in this chamber. They have been very calm and very responsible. Bill C-7 was sent back to the House of Commons after the Senate made several amendments that significantly expanded the scope of the bill that was passed by the other place.

The Senate adopted five amendments that dealt with two main topics: the exclusion of medical assistance in dying for persons who suffer from mental illness as the sole underlying reason and advance requests for persons with neurocognitive disorders.

In my eyes and in the eyes of the public, the most important amendment, before it was rejected by the other place, was the one concerning neurocognitive disorders. I have received dozens of very moving testimonies from people suffering from Alzheimer’s who can’t understand how, still today, we can allow families to suffer for sometimes years at a time. What’s more, these people told me that they had no intention of becoming completely dependent on their loved ones. These patients want to be freed from their suffering in dignity and, unfortunately, this bill does the opposite by condemning them to a dehumanizing death.

Dr. Georges L’Espérance wrote the following in his op-ed in Le Devoir on March 12:

Cognitive neurodegenerative diseases are organic and degenerative in nature and they present with cognitive symptoms. People with such diseases have limited and relatively predictable life expectancies. The prognosis is also predictable, and symptoms always continue to progress. The markers are fairly easy to identify. Social support is widespread. Some of the most well-known of these diseases would be Parkinson’s or Alzheimer’s.

By refusing to allow advance requests, our Parliament has condemned these people to years of distress and is forcing them to look for alternatives, such as suicide. Most of all, Parliament is denying them access to a right that is recognized in this bill.

I have been speaking to a patient with Alzheimer’s for two months now, and he gave me permission to share what we have spoken about. His name is Yves Monette. He was born in the 1960s, but he doesn’t remember much about that time now. He’s had Alzheimer’s for nearly five years, and his health has declined as of late as dementia took hold. He became incontinent, which has triggered many bouts of depression. He is considering going to Switzerland to access medical assistance in dying since he has been left out of this bill. He will have to spend all of his life savings to assert his right to die in dignity, in a foreign country, far from family.

Yves writes to me every day, and I often have to decipher his words to understand what he’s saying. I nevertheless can see that he is suffering and is disappointed about being ignored. This echoes the feelings of Sandra Demontigny and the dozens of others who spoke to me about their suffering and about their fear of not being able to die in dignity. They simply do not understand.

I find it unfortunate that the government didn’t give further consideration to the provision of Bill C-14 that required an in-depth study of advance requests. Esteemed colleagues, over the past five years people have been dying of Alzheimer’s or dementia without any power to make end-of-life decisions. Their families were condemned to watching them deteriorate and die suffering. This bill extends the suffering of these people to the entire family, whereas they would prefer to spare them the agony.

In my opinion, Bill C-7 was an opportunity to resolve the issue of advance requests, which would have allowed all these people to choose the manner of their death and to be at peace with themselves and their families. Unfortunately, the government decided otherwise by rejecting Senator Wallin’s amendment, which would have included advance requests in the bill. The government plans to reassess the issue during the parliamentary review of Bill C-14, which is supposed to begin this year. However, as you know, it is already March. With the pandemic and rumours of an election, it is possible that the parliamentary review will be delayed. This will increase the suffering of many patients who had hoped to die with dignity with the passage of Bill C-7.

I’m also opposed to the way the government chose to put an end to discussions on Bill C-7 in the other place. The Minister of Justice moved a closure motion to put an end to the debate so that the bill would be immediately sent back to the Senate. As I said at the beginning of my speech, the Senate sent the bill back to the House of Commons with a larger scope than what was initially set out.

The government agreed to Senator Kutcher’s amendment, but made a change to extend the time limit on the mental illness exclusion to two years. The opposition parties, with the exception of the Bloc Québécois, called for more time to conduct an in-depth review of this amendment, because they found it to be questionable. In order to do their job properly, parliamentarians need time to address subjects as sensitive as MAID. In that respect, my thinking has changed a lot over the past few weeks as a result of the many messages I’ve received from people with psychological illnesses and from families who have a loved one with this type of condition. Unlike with neurodegenerative disorders, there is no medical or social consensus in this regard, and we have a long way to go and a lot of research to do before establishing a course of action that safeguards against abuse of any kind, particularly for the most vulnerable members of our society.

The Council of Canadian Academies, the CCA, was consulted on the bill. In its report entitled The State of Knowledge on Medical Assistance in Dying Where a Mental Disorder Is the Sole Underlying Medical Condition, the CCA dedicated an entire chapter to the profile of individuals with mental disorders. The report makes it clear just how legally and medically complex each individual case is. I would like to quote some excerpts from the report:

Because mental disorders are diverse and heterogeneous, and because they affect individuals in different ways, the implications of each eligibility criterion will vary for different people. This variability is also linked to people’s individual support networks. The course of a mental disorder and its impact on a person is a complex interaction among the disorder, the individual, and their social environment.

The Senate amendment, which was agreed to by the Minister of Justice, now seems risky to me, in that it could lead people to choose death in cases where I feel it should not be seen as a solution to their suffering. Medical science for the treatment of these illnesses is evolving rapidly, and the dividing line between what is curable and what is incurable seems to me to be far too thin for us to decide today that these patients may have access to MAID two years from now.

I would like to quote another excerpt from the Council of Canadian Academies report. It reads as follows:

There is a unique challenge in assessing decision-making capacity for [MAID] in people with mental disorders: their desire to die could be a symptom of their condition . . . . Although most people with mental disorders do not want to die, suicidal ideation is a common symptom of some mental disorders (e.g., major depressive disorder). Of course, a desire to die may also reflect a person’s autonomous and well-considered decision to end their life, even if they have a mental disorder. A desire to die in a person with a mental disorder is not necessarily pathological or non-autonomous. However, it may be difficult even for experienced clinicians to distinguish between (i) an autonomous, well-considered decision to die in a person with a mental disorder, and (ii) a pathological desire to die that is a symptom of that person’s mental disorder.

My reluctance is also based on how quickly MPs and we here in this chamber have dealt with this matter. This amendment is so important and its repercussions are so enormous that it should have included a requirement for the government to introduce a legislative amendment requiring both chambers to hold public hearings on the subject after the two-year period. In my view, this amended bill will have two consequences for the public. First, it will make Canada the most permissive country when it comes to assisted suicide. Second, this law, once passed, will perpetuate the perception among many Canadians that MAID is a mere formality.

For all these reasons, and in solidarity with those who have trusted us to listen to their wishes, I cannot accept the message from the other place.