Colleagues, I want to state again that this is an extremely difficult issue for me, as I know it is for many of my colleagues.

I promote the sanctity of life, from one end of the spectrum to the other, and I, as others, have had many sleepless nights considering how I will vote on this legislation when it gets to a final vote.

I was reminded of a close friend who, as a young mother in her forties, was suffering from ALS. She was eventually laying in a state where she could only move her eyebrows. As her illness progressed, she was conflicted. On one hand, she wanted to be around for as many momentous occasions her children would experience as possible. On the other hand, she desperately wanted to die. The decision to access assistance in death was clearly not available to her. However, she was disconnected from life support and died within minutes. Even while I stand here, opposed to the principle of assistance in suicide, I have not walked in her shoes or in the shoes of people like her, so I have no idea what I would have wanted if I was in that state.

However, that said, the Supreme Court of Canada has put us into a position, and we as parliamentarians are required to act responsibly.

We need to keep in mind, colleagues, that we are not voting on the legalization of assisted suicide. That is not what this vote represents. Assisted suicide is legal in Canada and has been so since June 7. We are voting on a set of eligibility criteria and safeguards, and whether we believe the safeguards and eligibility criteria are better or worse than the guidelines the provinces have put in place.

Colleagues, there has been much discussion about the constitutionality of this legislation, for example, whether the legislation is narrower than the Carter decision, and whether that, in and of itself, makes this legislation unconstitutional.

I believe that the bill in its present form is constitutional, both before and after the amendment that was passed last night. While there was disagreement in the chamber about the amendment last night, I am of the opinion that amendments to strengthen the legislation are not only necessary but will be upheld by the courts.

As Justice Sinclair said in this chamber last week — and we all heard him — on any given case, half of the lawyers are wrong. Allow me to make reference to the opinion of the half of the lawyers who I believe are right on this subject.

Paragraph 97 of the Carter decision reads:

At this stage of the analysis, the courts must accord the legislature a measure of deference. Proportionality does not require perfection. . . . Section 1 only requires that the limits must be "reasonable." This Court has emphasized that there may be a number of possible solutions to a particular social problem, and suggested that a "complex regulatory response" to a social ill will garner a high degree of deference.

In response to this, Gerald Chipeur, a constitutional expert and lawyer, stated:

If you give to the court, and to the country, a complex system that regulates this issue, in your opinion, in the best way possible based upon the words of the Supreme Court of Canada, it is likely that that court will respect your response in this dialogue with the court. So I encourage you to make a decision that is, in your opinion, the correct one. You're not in handcuffs, you're not in shackles and your opinion is important.

Professor Tom McMorrow, of the University of Ontario Institute of Technology, agreed that narrower eligibility criteria than those set out by the Supreme Court does not make the legislation constitutionally invalid. Professor McMorrow referenced the 1990 Supreme Court case of R. v. Mills. Parliament had made a law strikingly similar to the one struck down. However, the court said that this did not automatically render the legislation unconstitutional. In this case, the court stressed that complex regulatory regimes are better created by Parliament than by the courts.

Lawyers John Sikkema and Derek Ross had a piece published in Policy Opinions yesterday stating:

Contrary to what some suggest, Parliament would be well within its constitutional authority to enact a regime that is different from and narrower than the regime created by [Carter].

They later state:

Uncertainty undermines what the Supreme Court found in Carter to be the important objective of the prohibition on assisting in someone's suicide: namely, protecting the vulnerable people from being pressured to commit suicide in a moment of weakness.

All in all, colleagues, because of expert opinions attesting to or denying the constitutionality of this legislation, this will more than likely face a challenge at the Supreme Court level. Many constitutional experts are certain we are within our rights to strengthen this legislation in the context of creating sound social policy. And, colleagues, on a bill that is quite literally dealing with "life and death," we need to act responsibly and get this right. Crafting social policy is exclusively at the discretion of Parliament.

As Senator Baker stated yesterday:

. . . section 118 of the Criminal Code . . . defines this place, the Senate, as a judicial proceeding. It is the first judicial proceeding that's mentioned in the Criminal Code under that section. It is the highest court in the land.

Mr. Chipeur's final point in his testimony at committee was with respect to conscientious objection. He stated:

. . . it is within your power to simply create an exception for all health care providers and institutions that choose not to participate in providing death, just like you do, as Parliament, with respect to the Income Tax Act and the issue of charitable organizations. Parliament could not legislate with respect to charities if it just did so vis-à-vis charities alone, but it was free to carve out charities from the Income Tax Act.

Colleagues, in the same way, what we are doing, in essence, is carving out an exception in the Criminal Code to murder. As I have stated before, we, as the federal Parliament — and we alone — determine the parameters with which assisting someone in dying is legal. That is exclusively federal jurisdiction. What the provinces do to regulate that beyond the parameters set out in the Criminal Code is their prerogative.

With that said, I have spoken before in this chamber about the importance of protecting practitioners' conscience rights on the shift in ethics that has been imposed upon them, directly in contradiction to the Hippocratic oath they took as physicians.

While this is certainly not restricted to objectors for reasons of faith, that certainly needs to be a consideration. Religious leaders of Muslim, Jewish and Christian faith testified at committee, citing the need for conscientious protection for physicians of their respective faiths.

Dr. Blackmer of the Canadian Medical Association, when testifying at the Legal and Constitutional Affairs Committee, said that a referral is effectively an endorsement of a procedure, and that is morally problematic for many practitioners.

A survey of 1,201 Canadians conducted by Abingdon Research asked this question: How should a physician whose religious beliefs would forbid them from referring for assisted suicide be required to act when a patient requests the procedure? Honourable senators, 86 per cent believed in a practitioner's right to conscientious objection.

When Dr. Dawn Davies of the Canadian Paediatric Society stated, quite fervently, that this has been imposed upon physicians, she stated:

I would agree that in almost every other case there is a duty to refer or a duty to transfer care. I think that at a provincial level they're collecting lists of physicians willing to perform this procedure and that patients will navigate their own way.

To say there is a duty to refer makes people that may not be comfortable with this in any way, shape or form feel complicit in part of it. There's enough of a groundswell of change that people will be able to navigate themselves.

Honourable senators, I cannot introduce this amendment without, once again, making reference to Dr. Sephora Tang. Colleagues, her powerful testimony struck a chord with every person in the room.

I am going to read some of her response to a question I asked about how it might impact her work as a psychiatrist if she was forced to refer patients requesting suicide to a willing practitioner, as some of her patients, she stated, have physical conditions that would qualify for assisted dying under this bill. She responded in this way:

In my work as a psychiatrist, I deal every day with patients who have either tried to commit suicide or are chronically suicidal, very depressed, suffering immensely. It is my job, as a psychiatrist, that they are able to come to me, in a place that is safe, like the hospital, and I give them hope in a moment when they have lost all hope. They need to see that I remain consistent in this. . . .

With the whole issue of conscientious objection, it's almost as though my professional judgment has been stripped . . . .

How do I feel about sending my patient, somebody I know that I could work with if they would be willing to work with me, to somebody that I know may be also the person that would be causing the death of this patient?

I wish to be able to do my work, which I honestly love. It is the most rewarding thing to be able to work with my patients and journey with them and to see them come out of a very dark place.

Colleagues, if this amendment does not pass, Dr. Tang, as a psychiatrist in Ontario, will be forced to refer her depressed patients to a willing practitioner, and we would be stripping her and other objecting practitioners like her of their professional judgment.

Some provinces have protected objecting practitioners from participating, including with respect to referrals, but most will require a referral, to remain consistent with their policies on other medical procedures. This is the furthest departure from standard medical practice that we have ever seen in this country, and we need an explicit protection for our practitioners.

Colleagues, mechanisms will be put in place to ensure there is a robust, comprehensive self-referral mechanism, and it was made clear in committee that there will be no issues in terms of access, even in rural and remote areas.

We need to ensure strong protection for our physicians, and it needs to be more than a generic statement, because the provinces have been clear: The statement that came from the House of Commons Justice Committee has no practical significance, and they will regulate around it.

Colleagues, there are many areas where we will disagree on the issue of assisted suicide in general, and specifically with provisions in this legislation. Canadians are divided on this; and because Canadians, including practitioners, are so passionately conflicted on this, we must protect them. I believe we can all agree that is the right thing to do.

Motion in Amendment

Hon. Donald Neil Plett: Therefore, 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 8,

(i) by replacing lines 32 and 33 with the following:

"(9) No person shall compel an individual or organization to provide or assist in providing medical assistance in dying or to provide a referral for medical as-", and

(ii) by replacing lines 35 and 36 with the following:

"241.3 Everyone who knowingly fails" and

(b) on page 9, by replacing line 2 with the following:

"graphs 241.2(3)(b) to (i) and subsection 241.2(8) and to comply with subsection 241.2(9) is guilty".