Will Senator Bellemare take a question?

Senator Bellemare: Yes, of course.

Senator Carignan: I heard your argument, which claims that if we amend the Criminal Code, the Quebec law will become unconstitutional. Is that what you said?

Senator Bellemare: Actually, I am not the one who said it. I was quoting Professor Peter Hogg, who appeared before the committee. I respect your expertise, Senator Carignan. I know you specialize in this field.

I asked him the question directly, and he replied that if Bill C-14 were amended so as to comply with the Carter decision, the Quebec law would then become unconstitutional.

Senator Carignan: I'll check what Peter Hogg said, but I would find that very surprising.

What is not constitutional is to look at whether an act or an individual's actions comply with the Constitution instead of with the Criminal Code.

You are saying that we should not amend the Criminal Code, that it is a very complex area and that legislators would be wading into a complex area. The Supreme Court also touched on this in paragraph 126 of the Carter decision, which states, and I quote:

It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

It seems quite clear that the Supreme Court gave legislators a choice about whether to enact legislation, saying that if legislators decided to do so, they would have to comply with certain constitutional parameters. Furthermore, the definition of individuals whose rights are being violated is similar to what Senator Joyal has proposed in his amendment.

My question is the following. Do you agree that we are not required to enact legislation and that if we do not, the parameters set out in the Carter decision or the definition that Senator Joyal is proposing will prevail?

Senator Bellemare: What Senator Joyal has proposed in his amendment is very vague. In his first speech, the Honourable Senator Baker pointed out that the criteria pertaining to intolerable suffering were subjective. He also mentioned a case in which a petitioner asked for medical assistance in dying to be available in two months and one week. The court found that this was not consistent with intolerable suffering and that the petitioner had to submit an earlier request. Senator Baker explained this situation in great detail.

Getting back to the main issue, when I asked Professor Hogg that question, he answered that since Quebec would exclude people who are not terminally ill, the Quebec legislation would be unconstitutional. He was clear about that.

Even though he did not have much time to reflect on the question, that is what he said, and you can verify that. I checked again earlier. I have it in my notes and I could give you the exact quote.

It is important to reflect on this point because if only the Carter ruling applies, it is unclear what will happen. Bill C-14 opens the door to medical assistance in dying for people who are suffering, but who are not necessarily at the end of life.

Speech by Senator Claude Carignan in support of Senator Joyal's amendment

Senator Carignan: This debate on a major social issue engages our feelings, opinions and values. We all respond in our own way.

Still, there is an important constitutional aspect to this bill that bothers me. I talked about it during my speech at second reading. I believe that this bill as written is unconstitutional and does not adhere to the parameters in Carter.

I would like to read paragraphs 126 and 127 of the 2015 Carter ruling. Paragraph 126 reads as follows:

We have concluded that the laws prohibiting a physician's assistance in terminating life (Criminal Code, s. 241(b) and s. 14) infringe Ms. Taylor's s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter. To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

I don't need to ask myself whether I am in favour of a situation in which a person who is sick, disabled, or suffering intolerably from an irremediable disease seeks medical assistance in dying.

Whether one agrees or not, the Supreme Court ruled that the rights of that group of people were violated. It describes that group in paragraph 127, which states that the Criminal Code is void insofar as it prohibits, I quote:

. . . physician-assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

It goes on to say:

"Irremediable", it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.

Those are the exact words that Senator Joyal chose to use in his amendment to describe the class of people whose rights are being violated.

Paragraph 6 of the Supreme Court's 2016 ruling on the request for an extension states the following:

In agreeing that more time is needed, we do not at the same time see any need to unfairly prolong the suffering of those who meet the clear criteria we set out in Carter.

The Supreme Court gave the government one year. We need more time, but the Supreme Court is saying no. It is saying that people have already suffered enough. It would be unfair to prolong the suffering of those who meet the clear criteria set out in Carter. The court is also saying that if it does not grant a constitutional exemption, then these people's rights will continue to be violated. There could be no clearer or more current element in the debate than two rulings of the Supreme Court that identify the class of people likely to invoke the right to medical assistance in dying.

The problem with Bill C-14 is that it creates two classes of people: one for whom death is reasonably foreseeable and another for whom death is not reasonably foreseeable. The Supreme Court found that the rights of both classes had been violated. By choosing to limit the scope of Bill C-14 to the class of people whose death is reasonably foreseeable, the government continues to violate the rights of the other class. Bill C-14 does nothing to limit the impact or prevent the violation of those rights. Bill C-14 sets a limit and minimizes the impact for those who are closer to the end of their life, but not for the others, and that is the major problem with this bill.

I would like to speak to you about Peter Hogg. I know that name doesn't mean much to those who are not familiar with constitutional law, but Peter Hogg is the leading constitutional expert in Canada. I therefore paid particular attention to him when he appeared before the Standing Senate Committee on Legal and Constitutional Affairs to talk about this bill and said, and I quote:

I think it gives no room for narrowing the class of entitled people. Parliament can't establish a subclass of people within a class whose rights are being violated. It could broaden the class of entitled people. It could add different safeguards, but it can't narrow the class of entitled people.

Why? Because the more Bill C-14 narrows the class of entitled people, the larger the number of people whose rights will be violated becomes. The solution is to make a distinction, to set up safeguards for each group. The safeguards could be different depending on the person's individual nature. For example, there could be safeguards for people at the end of life and another type of safeguards for people who are not. Setting parameters is a responsibility of the legislative branch, but it is illegal to draw a blurred line between two groups, one whose constitutional right to medical assistance in dying will be respected and another group whose right will not. That creates a demarcation that violates the Canadian Charter of Rights and Freedoms. What is worse, the line of demarcation is blurry.

There are about 80 of us here in this chamber — I'm including everyone — and if we tried to define the term "reasonably foreseeable death," we would never agree on the same day, week or month. That means that we are leaving it up to doctors to determine where to draw that line. One doctor could decide, based on his reasonable belief that an individual's death is foreseeable, that the line should be drawn at a certain place. Another doctor could draw the line somewhere else. What happens when the line is blurry and cannot be agreed upon? One doctor would be providing medical assistance in dying, respecting his patients' rights and doing his job as a doctor, while another doctor would be committing a criminal offence because the line of demarcation is there for a reason. The line separates those whose constitutional right is respected from those whose constitutional right is violated. It separates a doctor who is doing his job from a doctor who is committing a criminal offence. If we decide to draw a line, it needs to be very clear. Obviously, the line drawn by the term "reasonably foreseeable death" is not clear, and all of the witnesses agree on that.

Therefore, in my opinion and according to Peter Hogg and constitutional expert Blake, the beauty of Senator Joyal's amendment is that it makes the bill constitutional and gives certainty to the application of the bill.

The next step we must take, and here we are considering eligibility, is to identify the safeguards. In my opinion, it is vital that we do this in the coming hours and days. We must do exactly what Senator Wallace proposed: identify the reasonable limits that we can impose as part of a free and democratic society.

We will then consider a group of people. The people are different; some of them are at the end of life, while others are not. In both situations, how do we assess the vulnerability of these people? What measures must be put in place to ensure that their rights are guaranteed and that the vulnerable are protected? The objective is precisely to protect vulnerable people. The Minister of Justice told us so. We saw this in Carter with the justification of the pressing and substantial object used in the Oakes test to justify the reasonableness under section 1. However, what is the pressing and substantial object that we wish to attain? We want to protect vulnerable people. Are we protecting vulnerable people by imposing a total prohibition for one sub-group of people covered by Carter?

It is true that we are preventing them from exercising this right, that these people will not take that step, and that they will not ask for medical assistance in dying. But does that mean that are we respecting their rights? The answer in Carter is no. Therefore, how can we strike a balance between protecting the vulnerable while allowing people to exercise their constitutional rights?

It is not a simple thing to do, which is why the Supreme Court recognized in Carter 2 that requiring judicial authorization during the interim period ensures compliance with the rule of law and provides an effective safeguard against potential risks to vulnerable people. The Supreme Court indicates that a safeguard could be, for example, judicial authorization so that cases are assessed individually in order to protect vulnerable people. That kind of measure is possible.

The legislator chose a total ban, complete prohibition. The Supreme Court already said no, that that was unreasonable and not minimally impairing. The principle of minimal impairment set out in the test of section 1 of the Canadian Charter of Rights and Freedoms requires that we look at how we can impair people's rights as little as possible. The Supreme Court has already said that judicial authorization ensures compliance with the rule of law and serves as an effective safeguard for vulnerable people.

I will be voting in favour of Senator Joyal's amendment, while keeping in mind the next steps. Together, we will have to come up with the most appropriate measures to protect vulnerable people. We might also have to consider different safeguards for different groups of individuals depending on their condition, because I don't think it would be reasonable, for instance, to require judicial authorization for someone who is terminally ill.

May I ask for five more minutes, Your Honour?

The Hon. the Speaker: Is it your pleasure, honourable senators, to grant Senator Carignan five more minutes?

Hon. Senators: Agreed.

Senator Carignan: I don't think it's reasonable to require judicial authorization for people who are in end-of-life situations. The notion of "end-of-life" in the Quebec law is clear and recognized, and it is already in practice. We can definitely have safeguards in place for people in end-of-life situations, for physicians, somewhat like those that are already in Bill C-14, and other safeguards for people who are not in end-of-life situations.

It is our duty as legislators to strike a balance. It is not about determining which group had their rights denied or not. That is not how we deal with individual rights. I heard the argument that this percentage of Canadians is in favour compared to that percentage of Canadians. Be careful. The Charter seeks in fact to protect minorities from abuse. Just because the majority wants to violate certain rights, that does not mean it is permitted to do so. That is why charters of rights and freedoms exist. They protect citizens from abuse. Please, let's not use a poll to determine the merits of a bill. I will stop here to answer questions.