Honourable senators, it's with a good deal of humility and similar pride in this institution that I rise to participate in this debate. It's been an incredible week for me in this chamber, as it has been for many of you who have spoken about that experience.

In the course of the debate, we've experienced the power of reason and argument; we've experienced also the equal power of emotion and our own personal stories. And, as legislators, it is our task now to integrate the reason and logic, stories and emotion, and ultimately come to an individual and, through the process of legislating, a collective view

It is in that context that I rise and participate in this debate, a debate which we all know was commenced with the ruling of the Supreme Court in the Carter case, in which the Supreme Court called upon the government, Parliament, to respond in a year to the ruling. And for reasons that Senator Patterson rightly described, because of the unique circumstances of that year and a change in Parliament, Parliament itself has had a less than fulsome period in which to deal with the Supreme Court's demand. I would argue that Parliament, the government, have, within the context of that timing, had a broad process of engaging parliamentarians and other stakeholders, provincial and territorial governments, affected communities, the disabled, certainly legal advice. And Parliament, in terms of the other chamber, dealt in the way in which the House of Commons works, with a series of positions and amendments and ultimately on an all-party basis passed a bill which is now before us, for us now to take our responsibilities.

I cannot see how we end this process for us other than having support for a particular position embraced by non-traditional and cross-bench, if I can use that term, voices in this chamber. The task for us over the next number of days is to find the mechanisms that allow us to achieve that.

I want to let you know that I feel that as part of my obligation as well, and I commit to you to work as best I can within the role that I play to continue to make this an opportunity in which the Senate can be seen to be and is acting in accordance with the highest standards of our mandate.

Some Hon. Senators: Hear, hear.

Senator Harder: While the parliamentary consideration, one could argue, has been rushed, the debate has been long; 23 years ago, in the Rodriguez case, it launched the debate, and there have been a number of references in place to the work of Senate committees, and in particular Senators Nancy Ruth and Larry Campbell, and work done in public policy fora by institutes and professional groups on the whole area of medical assistance in dying and how societies ought to cope with this changing view, not necessarily driven in the courts in the first instance, obviously, but in society itself.

I would argue that the bill before us is a democratic bill in that it has a balanced approach and reflects the diverse views of stakeholders and Canadians across the country. I believe this bill, and at this historic moment, is a bill that is the right approach for our country at this time.

For the first time in Canadian history, our criminal law would permit physicians and nurse practitioners to provide medical assistance in dying so that patients suffering intolerably on a path towards death could have a peaceful passing and not be forced to endure a slow or painful dying process. Bill C-14 would also codify in the criminal law stringent national safeguards which the court in Carter considered essential to protect the most vulnerable.

The bill would also establish the framework for a pan-Canadian monitoring regime so that we may collect the required data to properly assess the implementation of medical assistance in dying.

The bill is the product of careful consideration of the need for personal autonomy, access to health care services, protection of vulnerable persons and also conscience rights of providers.

With Bill C-14, the government seeks to exempt certain health care providers from the Criminal Code offences of assisted suicide and homicide to allow them to provide or assist in providing medical assistance in dying, as stipulated by the Supreme Court of Canada.

This legislation defines the criteria that must be met for individuals to be eligible. There are safeguards that must be followed to ensure that these criteria are met and that the request is truly voluntary. This is critically important to protecting vulnerable populations. As the Minister of Health presented during Committee of the Whole, the legislation establishes the requirement to monitor medical assistance in dying so that we can see how it is working in Canada.

With this bill, we can be confident in it supporting the autonomy of patients who are approaching the end of their lives while protecting the most vulnerable in our society. It is fair to say that while on the one hand many say this bill goes too far, others say it has not gone far enough. Specific questions have been raised in this chamber with respect to the meaning of "reasonable foreseeability of natural death."

It must be remembered that this one criterion needs to be considered in conjunction with all the others, including the requirement that the person have a serious and incurable illness, disease or disability; and that the person be in an "advanced state of irreversible decline in capacity"; and that she or he be suffering intolerably in a manner that cannot be relieved under conditions that they consider acceptable.

"Reasonable foreseeability of natural death" means that, given all the factors contributing to a person's medical condition, it has become fairly clear that she or he is on an irreversible trajectory to death, even if there's no clear or specific diagnosis as to the course of their illness or how much time they have left. This criterion sends a clear message about the intended purpose of the legislation: to give competent adults who are on an irreversible path towards death the option of medical assistance in dying if they so choose.

For some, death may be foreseeable as a result of a single fatal medical condition, but death may also become foreseeable due to a combination of circumstances and conditions, none of which alone is fatal or could cause death.

The Minister of Health articulated to honourable senators that medical professionals have the professional knowledge, training and experience to assess the overall circumstances that lead to a trajectory towards the patient's natural death. The criteria, in their totality, were crafted in order to provide guidance to help medical providers in their assessment of eligibility, while allowing them flexibility in terms of clinical judgment.

However, making this kind of assessment is not an exact science. So the bill puts in place other safeguards, such as requiring that providers must exercise reasonable knowledge, care and skill, and act in accordance with provincial laws, rules or standards, and that the patient must be assessed by two physicians or nurse practitioners.

With respect to conscience rights, the government has committed to work with the provinces and territories to develop an end-of-life care coordination system that would effectively and practically balance the conscience rights of medical practitioners with the interests of Canadians seeking access. I would also note that the Justice and Human Rights Committee amended Bill C-14 to include a clearer statement in the preamble around conscience, as well as a clause in the Criminal Code that would affirm the importance of religious and conscience rights as guaranteed by the Charter, and would further clarify in the body of the bill itself that nothing in Bill C-14 compels an individual against their deeply held beliefs.

Canada's framework on medical assistance in dying needs to take into account a number of factors, including our constitutional framework, of course, but also the fact that Canadians live in such a vast country, including in remote and rural areas, as they construct the implementation of a constitutionally valid approach.

From coast to coast to coast, nurse practitioners provide a full range of high-quality health services, especially in remote and rural parts of Canada, given the lack of physicians in these regions. According to the Canadian Nurses Association, there has been a long tradition of serving the primary health care needs of 9 million people living in remote and rural communities with advanced practice nurses. This number, 9 million, represents a quarter of the Canadian population. This is one of the reasons why Bill C-14 provides exemptions for both physicians and nurse practitioners to be able to provide medical assistance in dying. Nurse practitioners or nurses with equivalent designation are those who are authorized in many provinces to perform medical functions necessary for medical assistance in dying. Similar to their physician colleagues, nurse practitioners have a broad scope of practice and the autonomy and independence to determine the appropriate assessment, diagnosis and required treatments to meet their patients' needs, including a patient requesting medical assistance in dying.

Exempting nurse practitioners from criminal liability, as the bill does, provides provinces and territories with an additional option to facilitate access to medical assistance in dying in unserved areas.

Regarding the issue of advance requests, it is useful to look at the experience and evidence from foreign jurisdictions. In the three European countries where individuals are allowed to make advance requests for medical assistance in dying, only the Netherlands permits such requests in the case of conscious patients who are unable to express their wishes, such as patients with dementia or Alzheimer's. In Belgium and Luxembourg, advance requests can only be carried out where the person is "in a state of irreversible consciousness."

To be clear, this is not what those who would like to see advance requests permitted in Canada are talking about. Evidence from the Netherlands suggests that in the case of individuals suffering from dementia, physicians are generally unwilling to administer medical assistance in dying after the patient has lost the ability to express their wishes. This evidence raises serious questions about the prospect of permitting a practice that Canadian physicians and nurse practitioners may be unwilling to carry out.

The Canadian Medical Association, who represents, as you know, 83,000 physicians across this country, echoed these concerns. They explained that currently in practice, even in the best of situations, physicians have a lot of difficulty acting on advance directives. Add the newness of medical assistance in dying on top of that, and the CMA stressed the potential difficulties in actualizing advance requests under such a complex set of circumstances, especially in the early years when medical providers are getting used to providing assistance in dying. They warned that it would likely prove more difficult for many physicians to participate in this process.

This is why the government has committed to studying this multi-faceted issue. I would like to commend also the members of the Justice and Human Rights Committee in the other place who amended the bill to require that the ministers initiate such an independent study on this issue no later than 180 days after the bill receives Royal Assent.

Finally, I'd like to stress how critical it is for this federal legislative response to be in place as soon as possible. On June 7, there will be no federal statutory framework on medical assistance in dying across this country. Outside of Quebec, there will, therefore, be a lack of safeguards that carry the force of clarity of the Criminal Code and no monitoring system for gathering data, both of which the Supreme Court said were necessary to reduce the risks of abuse or errors.

Uncertainty as to who would be eligible to obtain medical assistance in dying would also continue as legal experts, academics and courts continue to disagree about the meaning of the court's parameters in Carter. This would result in an inconsistent implementation of medical assistance in dying across the country, and this lack of legal clarity about the scope of the criminal exemption created by the Carter ruling could cause otherwise willing medical practitioners to refuse to provide assistance in dying to their patients.

As we heard from the Minister of Health just the other day in this chamber, this could cause very real access concerns for those Canadians who are waiting to obtain medical assistance in dying. In this way, providing legal certainty for medical professionals is inextricably tied to the rights of those Canadians who are suffering.

It has been said by several individuals, both inside and outside this chamber, that because there are provincial guidelines, we ought not to take into account the Supreme Court deadline. While I do agree that the sky will not fall, it is our responsibility to recognize and understand the highly variable standards and protections between our provinces and territories.

For example, Bill C-14 has explicit exemptions for nurse practitioners, other providers and people aiding at the express request of the patient. Medical regulatory guidelines address physicians only.

In New Brunswick, Nova Scotia and Newfoundland, individuals with a mental illness could be eligible for assisted death. Ten provinces and territories do not have residency requirements to be eligible for assisted death. In Ontario and British Columbia, guidelines do not specify age, which suggests the consideration of mature minors is possible. There is no specific waiting period in Quebec, P.E.I., Nova Scotia and Newfoundland and only two jurisdictions, Alberta and Yukon, require two witnesses. Most require only one or none at all.

With the utmost respect for the legal debate that we have before us, we should also be cognizant of the needs of patients and health care providers. It has been made clear by many, including the Canadian Nurses Association, the Canadian Medical Association, the Canadian Medical Protective Association and HealthCareCAN that it is highly unlikely health care providers will provide assisted death without federal legislation, creating access issues, which is of course the very thing the Supreme Court, many Canadians and all honourable colleagues wish to see a reality. At some point, there is a very real concern that, without appropriate safeguards in place, vulnerable populations may very well be at risk.

Medical associations, medical authorities, provinces and territories are requesting federal leadership on this highly complex issue, and that is exactly what Bill C-14 provides. It sets out a strong national framework and strikes the necessary balance between the autonomy of people suffering intolerably who seek to obtain a peaceful passing and the protection of those who may be vulnerable due to age, illness, handicap or other factors, such as loneliness.

Honourable colleagues, I share Senator Sinclair's view that this bill is both constitutional and compliant. It is consistent with the Charter but uses language that is broader in scope and rooted in practical language that patients and providers can understand. The government and the other place recognize that this this is just the start. They are not waiting for the mandated review to begin the process of very specific, independent studies referenced in the legislation.

The bill before us meets, in my view, the test of a democratic bill. It undertook significant consultations, which is not rushed in the space of just a few months but in the broader context of the debate that we've been having in Canada over the last several decades.

Our obligation is that we must honour the commitment made, the bill that has been passed with bipartisan support, and we must begin to implement, as quickly as possible, a legislative regime consistent with the Supreme Court ruling and an immediate process of data collection and independent studies.

Over the past several decades, baby boomers — and that includes some of us still — have defined every public policy issue throughout our age cycle. I fully expect that we will continue to do so, and therefore, this issue and other issues of end of life and senior treatment will continue to be before this Parliament and this chamber as we evolve our thinking and societal considerations, as we learn from the research that is being collected, the data being collected, the basis of future policy choices through the consultations that will be launched. And the experience before us and this house over the period of the next number of months and years will indeed cause this issue to be returning to us for further examination and implementation.

Senator Cowan: Would Senator Harder entertain a question?

Senator Harder: Yes.

Senator Cowan: First of all, thank you for your thoughtful address. I think all of us would agree there is much in this bill that is deserving of support; there's a lot of good in the bill.

But I think the concern that many of us have is what is not there. I think perhaps it was Senator Lankin earlier who mentioned one that struck me. The concern I certainly have is that the bill on its face, as it stands now, discriminates between Canadians who have the same suffering. She mentioned the situation where two people — one elderly, one of younger years — have exactly the same disability, exactly the same condition, exactly the same intolerable suffering, and both of them wish to take advantage of medical assistance in dying. And one, because of advanced age and obviously being closer to death, is able to access this and the other one must be forced to endure that suffering for months, years or some indeterminate length of time. That is, I think, discriminatory. I suggest we would all find that to be unfair or, at least, uncomfortable.

We've heard the ministers affirm here that the choice the government has made is that medical assistance in dying will be available only to those who are near death, who are on a path to death, and we're to provide a peaceful exit. But we must be equally concerned about those people who qualify under the eligibility criteria set forth in paragraph 127 of the Carter decision.

So if the government is concerned, as it should be, about those persons and their Charter rights, then wouldn't a better way to deal with this, rather than exclude them from access, as this bill does, be to talk about additional safeguards of some type to ensure that there is no undue influence and that there is clear and competent consent in those circumstances? Why not provide, by way of additional safeguards, if that's necessary and I'm not sure it is. But if it is, rather than deprive those Canadians of their constitutional rights, why not allow them to exercise their rights and provide protection by way of additional safeguards?

Senator Harder: I thank the honourable senator for his question. In responding, I want to recognize that I am not a member of the ministry and therefore I cannot speak for the debate that undoubtedly the ministry has had. But I do know from discussions with ministers — and, indeed, questions that were asked in Committee of the Whole — that ministers referenced and encouraged us to look at the eligibility criteria as an interacting whole that would be part of the assessment, first of all.

Second, there is a sense in the architecture of the bill itself that, given the significant change implied by the introduction of medical assistance in dying, we ought to respond in this bill with a regime that doesn't address all of the issues that public policy has yet to inform us on.

Having said that, the bill does commit to those public policy issues being informed by data, being informed by consultation, and indeed within a time frame that is articulated in law itself.

I would conclude that this is a starting place, which in my judgment and in the judgment of the Attorney General of Canada and other learned individuals who have been referenced — and that obviously doesn't include those who have a different view — conforms with the requirements of the Charter. So let's start implementing it, recognizing that implementation itself will be a challenge, and begin to provide the right that the Supreme Court has articulated as quickly as possible.

Senator Cowan: I can appreciate that there is a process involved. I appreciate the acceptance by the government that further study is necessary in some areas. Certainly, on the joint committee we had some real concerns about mature minors, advance consent and the implications of competence with respect to those who have mental illness.

The Minister of Justice said here the other day that the government's intention is to limit access to those who are approaching death. Nowhere in the decision in Carter or in the decision of the Alberta Court of Appeal, which we've touched on many times, or in any of the decisions of various courts across the country is that distinction made. The government is asking us to recognize the rights of some Canadians suffering intolerably and to leave for another day the equal rights of those who are not approaching death. That seems to me to be unfair and unnecessary.

A simple recognition and acceptance of the criteria which are set forth in the paragraph, to which we've all referred so many times, in Carter would alleviate that. Why wouldn't we simply say the Supreme Court of Canada has defined that the Canadians who meet these criteria are eligible, subject to all the kinds of safeguards in the bill that we could add to the bill for protection of the vulnerable? Why wouldn't we say that is very clear? And let's use those words, and then we are not discriminating between and amongst Canadians who have had constitutional rights confirmed. That's the real sticking point for me, Senator Harder.

Senator Harder: Thank you again for your question. We spent a good deal of the Committee of the Whole discussing this issue with the Attorney General and the Minister of Health. I would simply reiterate that the Government of Canada, in developing its public policy framework, believes it is consistent with the Charter and is providing an eligibility regime which is better understood and more inclusive of circumstance. It is one which they have confidence will find acceptance in the practising community.

Senator Plett: Would the senator take another question?

Senator Harder: Yes.

Senator Plett: Senator Harder, you spoke briefly about conscientious objection in your comments. I think you referred to "nothing in this legislation."

The fact of the matter is the clarification is "For greater certainty, nothing in this section . . . ." It's not even the legislation. Section 241.2(9) says:

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

In my opinion not a single lawyer, even those who support this amendment, would believe that this will have any practical significance, this particular phrase.

There may be nothing in this section which compels an individual to provide or assist in providing assisted suicide, but more importantly, there is nothing that prevents the province from compelling someone to assist in suicide.

Ontario will force physicians to refer unless it is stipulated clearly in this legislation. As a federal government, can we not make health care regulations for the provinces? I am not suggesting that we should interfere in provincial jurisdiction, but we are putting an exemption into the Criminal Code that it is not murder if assisted suicide occurs within these parameters.

So I have two questions: How is it not the role of the federal government to determine those parameters? As legislators, should we not protect the witnesses who appeared at committee and asked us specifically to work conscientious objection into the exemption from the Criminal Code so that they are not forced to refer and in essence endorse assisted suicide?

Senator Harder: I thank the honourable senator for his question and his ongoing interest in conscientious rights. I do respect the work that you have done with a broad community in Canada on this issue. I met with them to discuss this issue.

The view of the government and the constitutional and other legal advice is such that the reference in the bill was for added clarity because we believe that conscience rights are protected elsewhere in the bill. But for added clarity, it was inserted or added.

It is the legal advice from the constitutional lawyers that the protections being provided go as far as the federal government could without intruding on provincial jurisdiction. The example that you cite with respect to the Criminal Code is of course federal jurisdiction.

I would also, though, reference the commitment made. The Minister of Health indicated before us in Committee of the Whole that it is her ongoing engagement with her provincial colleagues, recognizing that this is not in her jurisdiction, but there is an interest in the Government of Canada in ensuring as broad a degree of harmonization on provincial implementation as possible to ensure or to discuss at least conscience rights in that context.

Senator Plett: To quote the Honourable Senator Sinclair yesterday, he said 50 per cent of all lawyers are wrong. That would be the same for constitutional lawyers. They argue both sides, so 50 per cent of them are wrong. I will take the 50 per cent that say this is constitutional and work with them.

Both ministers in committee and Committee of the Whole were clear that we want to strike legislation that is consistent across the country. It is a Criminal Code situation. They want to strike something consistent across the country. The minister said that she wants to work with her provincial counterparts, but that could allow us to have anywhere from five to ten or eleven different laws across the country. If we want something consistent, then the federal government has to be involved, and they have the jurisdiction when this is something that deals with the Criminal Code.

Senator Harder: We live in a federation, and implementing public policy and administrative practices in a federation in which both jurisdictions have various roles is a challenge and a respectful engagement between levels of jurisdiction to ensure that citizens are appropriately served by their governments.

The Criminal Code is a federal jurisdiction. Health care is a provincial jurisdiction. The regulation of the organizations involved is within a provincial jurisdiction.

I can appreciate, and the minister and the government appreciate, the desire for commonality as much as possible. This federation has evolved in recognition of a jurisdiction, and we do the best we can within a federal system to have a degree of coherence and predictability.

The balance that the bill provides between protection of the conscience rights of service providers and access to this right by citizens from coast to coast to coast is a fine balancing act, and I believe it has been struck properly.

Senator Joyal: Would the honourable senator entertain another question?

Senator Harder, you have heard the deep and genuine concern of many senators about the impact of Bill C-14 as it is drafted in relation to Canadians who are suffering intolerably, as Senator Petitclerc has described this morning better than any of us could, and that those people feel they are being discriminated against by the government. The deep feeling that you saw is pervasive in this chamber.

Would it not be better for the government to go back to the Supreme Court on Monday, since the court gave Parliament a very stringent deadline, and say to the Supreme Court, "Could you pronounce on the constitutionality of this bill to be sure that the decision the government takes is not a discriminatory decision"?

I think we have to learn, Honourable Senator Harder, from what the former government did in relation to Senate reform. Senate reform was part of the electoral platform of the Tory party when it was elected more than 10 years ago. They got a mandate from Canadians to reform the Senate. The first thing was to introduce a bill to restructure the Senate.

Some of us, myself included, stood up and questioned the constitutionality of that initiative. The debate took place back and forth, from the other place to this place and to the Legal and Constitutional Affairs Committee. At a point in time, even though the government was under the advice of the Justice Department — the same lawyers that advised the present government on the constitutionality of its initiative — the former government, in my opinion, made the right decision and referred the case to the Supreme Court.

We got a decision from the court that, in my opinion, is probably the most helpful decision to try to shape the nature of this institution and its evolution.

On a matter as sensitive as life and death, would it not be really the wise and proper thing to do next Monday to go to the Supreme Court and say, "We have made our best effort, and we want to be sure that this is what Canadians expect, and it is sound and constitutional"?

I think it would bring to the level of acceptance of this bill the kind of certainty that Canadians are expecting from a government that is, as you know, going into uncharted territory. I don't think the government would be negatively criticized, because what we are dealing with here is the most cherished gift we have, life and how we manage our own lives.

Senator Harder: I thank the honourable senator for his question and, frankly, for his advice.

It is, of course, not for me to commit the government in a way to respond to your question, but I can assure you that the question that you posed and the suggestion that you made will be brought to the government.

I think from the government's perspective of today, it would be best that on Monday the Senate continues to do its good work and seeks to form a view in the Senate, but that is for the Senate to decide and, ultimately, your suggestion for the government to determine. I hope we can proceed with our business, and I will ensure that the suggestion you made is brought forward.

Hon. Art Eggleton: The issue of advance directives has been discussed a lot in this debate, and the response through the bill is to do further study on that, to gather more information.

The house did amend the bill to allow for the 180-day provision to start it, and I note that Senator Lankin, in her remarks, suggested that maybe we need a deadline as well, so the time parameter seems to be taken care of in that regard.

That doesn't necessarily mean that legislation will follow. A lot of good reports end up collecting dust on the shelf, whereas now we have Bill C-14 in front of us. How can we be sure that amending legislation would be brought forward to bring advance directives into effect?

Senator Harder: I can't give that assurance. What I can give the assurance on is what the bill provides, and should it become law, what the law would provide, and that is that there would be an independent study within a particular time frame, which would have broad consultations. Presumably, those consultations would be to inform public discussion which could lead to a particular legal amendment to the practice.

You referenced the advance directives. In my comment, I spoke about the experience in the Netherlands. I had occasion to read the report on the experience of advance directives in the Netherlands in the geriatric society journal, which I am sure would be part of the material that an independent review would want to look at. It does raise issues of complexity and circumstances that we would want to have more work on.

As I tried to say in my closing remarks, the issues around medical assistance in dying and other issues attendant to the quality of life of seniors is not an issue that will diminish. It's an issue that will increase in complexity and subject matter, perhaps some of which we are unaware of today. I cannot imagine, Senator Eggleton, that there are not circumstances where, if good advice leads to good recommendations and broad public engagement, and politics would not run its course appropriately.

The Hon. the Speaker: Are senators ready for the question?

Senator Raine: Could I ask that you, as the Government Representative in the Senate, put forth a request that a study be done by the Senate on the question of advance directives?

Senator Harder: That could be done either through an amendment or by me in my role. I would be happy to do either, frankly, and would leave it to the chamber in its deliberations.

Senator Lang: I want to go back to the question of the directives established by the provinces and territories. As you recall, during the course of the debate, I pointed out that I felt that the bill was going to be more restrictive as opposed to the situation that would exist without the bill and the directives that have been established by the provinces and the territories.

In your study of the medical directives in the provinces and territories, will the provinces and territories have to revise their directives to meet what's contained in Bill C-14 if it is passed?

Senator Harder: I cannot speak for the provinces, of course, but it would be my view, subject to advice, that the regimes in place will seek to include, but on a quite inconsistent basis, advance directives.