Honourable senators, yesterday we adopted an amendment moved by Senator Joyal to change the definition of persons eligible for medical assistance in dying so that Bill C-14 complies with the Supreme Court ruling in Carter.

With the adoption of this amendment, we gave access to medical assistance in dying to a group of people who are enduring intolerable suffering but for whom death is not reasonably foreseeable.

But this is a right that will only be exercised once, so we must get it right.

Therefore, it is a unique fundamental and constitutional right, because it can only be exercised once.

Today, we are beginning a discussion that is just as crucial as yesterday's because we will attempt to establish a framework for access that will protect this class of people who have been given the right to medical assistance in dying.

We must carve out certain protections that will both provide access and rights for these persons to receive medical assistance in dying and, at the same time, protect them if they are vulnerable. The goal is therefore to provide a framework and a system that is a balance between the right to choose and protection.

We want to ensure there are strict, fulsome safeguards that could address any concerns that have been raised throughout this debate — safeguards that we decide moving forward will distinguish Canada from other jurisdictions where medical assistance in dying is legal.

Who are those who could have access? Who do we want to protect?

First, I would like to explain why we are talking about a "class of people". The lives of the people we talked about yesterday are all different.

Their individual characteristics, their illnesses and their suffering are unique. They could die after suffering for 10, 20 or 30 years. The absence of an imminent death and the fact that they may suffer for years before dying make it necessary to have a unique protection that is adapted to their personal and medical situation.

Protection, safeguards, are already built into the law. The law is appropriate. We will see this, through our deliberations, once we get to the topic of protections. The law already contains measures that I believe are tailored to people in end-of-life situations. However, people who are not terminally ill also face the risk of abuse, manipulation and undue pressure in a way that is different than people who are dying. For instance, the pressure that can be placed on them to hasten death can be more insidious and harder to identify. In addition, the manipulation can go on for an extended period of time.

Paragraphs 114 and 115 of the Supreme Court's Carter decision contain a list of possible sources of error. If I may, I'd like to quote an excerpt:

. . . cognitive impairment, depression or other mental illness, coercion, undue influence, psychological or emotional manipulation, systemic prejudice (against the elderly or people with disabilities), and the possibility of ambivalence or misdiagnosis as factors that may escape detection or give rise to errors in capacity assessment.

The judge therefore concluded that vulnerability can be assessed on an individual basis. Accordingly, balanced legislation that gives access to medical assistance in dying must also offer protection.

Since every case is unique, the solution is to make a distinction and include protections for each group based on the individual nature of the person. There needs to be an individualized assessment of the situation of people who are not terminally ill. That is why protections for people who are sick, people with disabilities, people whose suffering is intolerable but whose death is not foreseeable, must be adapted to each individual's reality. Every case is different, and this means that the criteria to be examined for every request for medical assistance in dying must be subjective and therefore assessed on a case-by-case basis. I am therefore proposing a model of judicial authorization that would be exercised by a superior court.

As we have seen in the number of cases that have gone before the Superior Courts in the four-month extension, this method was impartial, balanced and provided individual oversight.

As we saw in Carter2, the Supreme Court indicated that a safeguard could be, for example, requiring judicial authorization so that cases are assessed individually to protect the vulnerable.

This measure is possible. It allows a person to be eligible for medical assistance in dying, but it also protects the vulnerable. A judge could give access to medical assistance in dying if he or she is satisfied that two independent medical practitioners and a psychiatrist confirm that the person was informed of their medical condition; the prognosis for their medical condition and, if known, their life expectancy; the palliative care that could relieve their suffering; and the risks associated with medical assistance in dying. A psychiatrist could confirm that the person has the capacity to provide informed consent.

Now to require each individual to appeal to the Superior Court would be a barrier to access for those who meet the eligibility under Carter. But we must make a distinction between those who are at the end of life versus those who are suffering intolerably but their death is not near.

As we have seen in Quebec and other jurisdictions, "end of life" is a well-understood medical and legal term. It provides a timeline whereby individuals may be assessed. But for those who are not at the end of life, the only way to have sufficient parameters in place is to have a judicial review on a case-by-case basis.

I will quote the Carter decision of extension in 2016:

Requiring judicial authorization during that interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people.

This will still be the case for those seeking medical assistance in dying whose death is not near but still meet the criteria as set out in proposed subsection 241.2(1).

We must not exclude those who are suffering, but as Peter Hogg expressed at the committee, it is pertinent to provide safeguards.

Constitutional expert Peter Hogg told the Standing Senate Committee on Legal and Constitutional Affairs, and I quote:

It could broaden the class of entitled people. It could add different safeguards . . .

How do we assess how vulnerable people are in each of these situations? What measures do we need to put in place ensure that their rights are guaranteed and that vulnerable people are protected? Yesterday, when we adopted Senator Joyal's amendment, we broadened access to include people who meet the eligibility criteria set out in Carter.Today, I think we need to start examining the conditions that would give these individuals access to medical assistance in dying.

In the case of people who are at the end of life, I believe that we could adapt the provisions in the bill, but in the case of people who are not at the end of life, we need to create a mechanism. However, a mechanism is a type of limit, and as we know, with respect to democratic rights, a limit must pass the reasonable limits test under section 1 of the Canadian Charter of Rights and Freedoms. This test involves identifying that the legislator has a pressing and substantial objective in implementing these measures or safeguards and looking at that objective.

In this case, the objective is to protect vulnerable people, and we have to ask ourselves whether these measures harm or have any effect on people who want to exercise their constitutional right. I think that judicial authorization is the best way to balance these rights in the case of people who are not at the end of life. The legislator chose a total ban for people in this group. The Supreme Court already said that this was unreasonable and not minimally impairing. I therefore propose that a judge examine the requests on a case-by-case basis, with the help of an assessment by a medical practitioner and a psychiatrist.

Yesterday, we defined a group in terms of the reasonable belief of a natural or foreseeable death. Today, my amendment puts forward the notion of end of life based on Quebec's law, which has begun to prove its worth and is recognized in the medical community as being easy to apply.

Motion in Amendment

Hon. Claude Carignan (Leader of the Opposition): That is why, honourable senators, I move:

That Bill C-14, as amended, be not now read a third time but that it be amended in clause 3,

(a) on page 6,

(i) by adding after line 5 the following:

"(1.1) In addition to the criteria set out in subsection (1), a person who is not at the end of life may receive medical assistance in dying only with the authorization of a judge of a superior court.

(1.2) The judge must provide the authorization referred to in subsection (1.1) if the judge is satisfied that

(a) the person meets the criteria set out in subsection (1);

(b) two independent medical practitioners confirm that the person was informed of

(i) their medical condition,

(ii) the prognosis for their medical condition and, if known, their life expectancy,

(iii) the palliative care that could relieve their suffering, and

(iv) the risks associated with medical assistance in dying; and

(c) an independent psychiatrist confirms that the person has the capacity to provide informed consent to medical assistance in dying.", and

(ii) by adding after line 39 the following:

"(c.1) ensure that, if the person is not at the end of life, the person has obtained the authorization referred to in subsection (1.1);"; and

(b) on page 8,

(i) by replacing lines 9 to 12 with the following:

"viding medical assistance in dying, the medical practitioner or nurse practitioner who provides the opinion referred to in paragraph 3(e), the medical practitioners providing the confirmation referred to in paragraph (1.2)(b) and the psychiatrist providing the confirmation referred to in paragraph (1.2)(c) are independent if they

(a) are not a mentor to the other practitioner or practitioners or re-", and

(ii) by replacing line 21 with the following:

"the other practitioner or practitioners or to the person making the re-".

The purpose of this amendment is to ensure that when the doctor refers to the section that lays out the procedure for providing medical assistance in dying, he or she ensures that an individual who is not at the end of life has obtained the judicial authorization referred to in subsection (1.1).

Following that are concurrence amendments that obviously ensure the enhanced applicability of the legislation.