Thank you, honourable senators. It was not my intention to rise with respect to this amendment, as I had ample opportunity last Friday to make my position clear with respect to this bill, but I felt I ought to respond to some of the comments made, just for the record and before senators have the opportunity to vote on this amendment.

I particularly want to respond to the suggestion made in the course of the debate that the minister was misled by officials in the Department of Justice.

I know the minister. The minister has been here taking questions, and I don't believe that the minister is parroting any particular brief for any particular official in the department but, rather, informed by her own legal background and, as Attorney General of Canada, the resources that she has relied on in developing and making a recommendation to cabinet. The sources available to her, as they have been available to the committee and to senators, show us that there is a wide range of legal views. She has formed a view, and she has expressed freely and confidently in this chamber that this bill is Charter- compliant.

Now, it's not unreasonable, when ministers form an area of public policy, that they want to be assured — as would the Prime Minister, cabinet and indeed both chambers of Parliament — that it is right. Senator Joyal spoke in his comments about the importance of our chamber reflecting the protection of Charter rights and Charter compliance. So it is absolutely primordial that ministers be confident that the legislation they bring forward is Charter-compliant. I want to re-emphasize to all senators that the ministry's and the minister's views, and indeed the views of parliamentarians in the other chamber, was that the bill before us is Charter-compliant.

That brings us to a broader question of public policy. Public policy can be framed in various ways. The minister spoke of the public policy choices that she made in conversations and discussions with, first of all, her colleague the Minister of Health, and other ministers, and then indeed before the whole chamber, and here in our discussions as well.

The objective of public policy discussion is to ensure that the legislative framework being brought forward is not just Charter- compliant but is the result of a good deal of public consultations, a good deal of policy, guideline and detailed operational considerations, so that an act, on being adopted, is implementable. It's not unreasonable that there have been broad engagements with the medical community and practitioners, broad engagement with the vulnerable, disabled community, those who have concerns for the disadvantaged and concerns about the operating of a particular new approach and first-time effort in the area of medical assistance in dying.

I think it's important for us — particularly as we deal with the most fundamental amendment before us, in my view, which is the amendment with respect to eligibility — that we not confuse the confidence with which the ministry brings forward what they believe is a Charter-compliant proposal. We can have our disputes as to whether it's the right public policy, but I would ask that you respect the Attorney General of Canada as not being misled by nameless officials in her department.

I also want to remind us that while we are dealing with one clause, we ought to consider that there are other aspects of this bill that interact with this clause, and that by no means is this clause alone defining the public policy of the bill. The public policy of the bill speaks to, later on, safeguards — and I was pleased to hear Senator Carignan's speech on safeguards — but it also interacts with clause 9, which predicts that there will be other discussions, inquiries and opportunities to study further some of the issues that are before us in this evolution of consideration for how we deal with medical assistance in dying.

So in closing, I want simply to reaffirm with confidence that the ministry believes, through its considerations, its advice and its deliberations, that this bill is Charter-compliant. Let there be no mistake about that as we vote on this amendment.

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): Would Senator Harder take a question?

Senator Harder: Of course.

Senator Fraser: Let me preface the question by saying I certainly do not — and I don't think anyone here does — question the sincerity or the conviction of the Minister of Justice. I think clearly she would only come here to defend this bill if she believed it was going to be good law.

However, you hang around here long enough and you get to see an amazing number of bills where the lawyers in the Justice Department have assured us six ways from Sunday that a bill was Charter-compliant, and then it gets to the courts and, whoops, it's not.

The first and most, to me, embarrassing example of this that I recall was a bill presented by the Chrétien government on extradition, which Senator Joyal will recall, and I was chagrined by it because I was its sponsor and I believed the lawyers in the Department of Justice. Senator Joyal and then Senator Grafstein explained to me that I was wrong. I thought, "No, no, the Justice people, they know."

Senator Joyal and Senator Grafstein were right, and the Justice Department was not.

This is a request that would have obviously some little urgency about it, if it could be carried out. As we go forward, would it be possible to obtain for us some outside legal opinion upon which the minister relied? Again, I'm not attacking the integrity of the Justice Department, but I am saying there is demonstrated history here of their, on occasion, being wrong.

So would it be possible to get some kind of authoritative outside legal opinion upon which the minister also relied in coming to the policy decision that she, and indeed the government, did reach?

Senator Harder: In responding to the honourable senator's question, I want to reaffirm that I was reacting to comments made tonight that the minister was believed to have been misled by the Department of Justice. I don't believe that's the case. I am not suggesting anybody is impugning the integrity of the minister; I just want to assure all senators that this is a considered viewpoint that the minister has brought forward.

With respect to the specific question that you're asking, of course I can't answer that, but I can on your behalf make inquiries and would be happy to respond.

Senator Fraser: Thank you.

Senator Carignan: Mr. Leader of the Government, when you were appointed to the Senate and then made Leader of the Government, I read your biography, which says that you had extensive experience in the public service.

You held high-level positions on Parliament Hill, so, seeing as you probably have a lot more parliamentary experience than I do, I would like to ask you the following question.

Have you ever seen a justice minister introduce a bill he or she described as unconstitutional?

Senator Harder: Well, I knew I was being buttered up with the preamble. Of course I haven't, at least not within my direct hearing. I have, of course, been a party to discussions on the risk factors in a number of bills, and that's not unusual in public policy either. But I do think that it is important for legislators to be reminded from time to time, particularly in dealing with a subject that is as important as the one before us and an amendment that is as integral to the bill — the amendment in some measure largely guts the bill — that it be clear that the ministry and the Attorney General of Canada have given assurances, both in this chamber and elsewhere, that the bill is Charter-compliant. That is what I wanted to ensure that all senators were reminded of before we vote.

Senator Cowan: Would Senator Harder entertain another question?

I think I might have been the senator who entered into the lexicon of our discussion the word "misled," and if anybody was offended by that, I think a better phrase would be, "I believe that she was mistakenly advised." Would you accept that as a correction of my intent?

Senator Harder: I would, on the condition that you would accept that accepting this amendment would be mistakenly advised.

Senator Cowan: You and the minister believe that accepting this amendment would be mistakenly advised.

Senator Harder: Now I agree with you.

Senator Lankin: Senator Harder, will you accept another question?

Senator Harder: Of course.

Senator Lankin: I want to return to an issue that was raised earlier, and that is the reason for the prohibition of access to medical assistance in dying by those Canadians who are not at a point of a reasonably foreseeable death. There was a question as to whether or not we understood the minister's reasoning for that.

I intervened that I thought I heard very clearly from her that it was her concern about having adequate safeguards in place for those people, not necessarily, as Senator Ogilvie talked about, the people who are experiencing intolerable suffering in a definition of "vulnerable," but other vulnerable populations, such as people with disabilities, and there's a range that we could talk about.

I wanted to ask you, one, if that is your understanding; and two, if we, through measures here, could not look to create some safeguards that might meet the minister's concerns. That might be a point of debate as we carry on. I understand there are some amendments that will address that.

I'm interested in knowing if you believe, as I do, that that is the main reason the minister did not extend medical assistance in dying to the full Carter definition and, in fact, wanted to see more protections for vulnerable people.

Senator Harder: Again, I am speaking on my understanding, as your question would suggest.

Within a framework that acknowledges compliance with the Constitution, I believe that the minister in her comments indeed reflected the view as you describe it. I would hope and would wish that perhaps later in our considerations we could adopt an amendment that would specifically lead to an inquiry or a set of work being done, as organized in clause 9, that the cases of persons for whom "reasonably foreseeable" is not applicable can be addressed.

This is an important issue that has been raised by a number of senators in their interventions. We did question both ministers on this, and I believe that that would find favour with the government in assuring that this area was on our agenda as we develop public policy in this particular important area.

But I do think it's important for me to repeat that this is the start of public policy discussion, and where we end up over the course of the next years I hope is informed by our experience, the data that we will collect and the studies and consultations, which will be launched immediately upon Royal Assent so that we can have better-informed public policy and better engagement on the basis of information, experience and dialogue with Canadians.

Senator Enverga: I have a question for Senator Harder, if I may, please.

Senator Harder: Of course.

The Hon. the Speaker: I'm sorry, Senator Enverga. Senator Harder, your time is about to expire. Are you asking for five more minutes to answer a question?

Senator Harder: I would be happy to, if the house will allow it.

The Hon. the Speaker: Is leave granted for five more minutes?

Hon. Senators: Agreed.

Senator Enverga: Today, we heard about protecting minorities, the vulnerable and the disabled. We even talked about constitutional rights.

You are talking about the minister not wanting to put in this particular amendment. It says "condition including an illness, disease or disability that causes enduring suffering that is intolerable to them in the circumstances of their condition."

With all the suicides — we have all heard about the suicides in Woodstock or Attawapiskat. When the Aboriginal Peoples Committee was in Kuujjuaq, we heard about suicides there. Even in Igloolik, we heard about suicide. Is it possible that the minister is not including the wording of this amendment to specifically state that without safeguards it will be too late — that we will be sending the wrong message to our youth? We will be sending the wrong message to our youth when this is opened up — that anybody who has particular issues intolerable to them in their circumstances can be killed or can die.

Would this be some sort of a "lesson," let's say, that kids would say, "I'm not a part of this — I'm not an adult — but since this is now legal, I will be able to do this." Do you think the minister is acting on the belief that if she ever put this particular amendment there that the kids — our youth — would think that this is good for adults, why can't it be good for me? It's just like smoking.

Senator Harder: I will answer for myself and obviously not for the minister. This bill is carefully crafted and balanced to have a public policy regime consistent with the Charter that is respectful of the court's decision; that is balanced in respect of access, eligibility and safeguards; and that sets in place a broader public policy engagement on issues that are not specifically addressed in this bill that we need to have a broader conversation on.

It's important on all sides that we have a respectful and moderate engagement on this matter, because medical assistance in dying is going to be with us as a country. It will evolve in our experience and our understanding, and we should be respectful in our language.

Hon. A. Raynell Andreychuk: Would Senator Harder take another question?

Senator Harder: Of course.

Senator Andreychuk: I intend to speak to the issues later, but you've compelled me to ask you a question. The right to die is not an issue here; it's the assistance of that. I think the court made it very clear in many ways that is a right we have. It's not a right a government gives us. Our rights are in the Charter.

This bill is about who can assist without drawing liability and criminal liability.

What troubles me is that you're saying pass the bill because there is this time limit, and then we'll find the facts. What will we do then with the facts? Will we amend the bill? Will we live with the bill? I think you've been around the Hill as long as I have. It's very difficult, once a law is in place, to change it. There's an inevitable inertia: People change, and they have to be brought up to date.

What I don't understand is the court didn't say we had to pass a law; the court said there is a right to die. It did not get into the other aspects of how the assistant medical professional and others will be treated except I think we're all drawing the conclusion that there shouldn't be a penalty for those people — and a criminal penalty.

So why are we put in a public policy position that we're going to pass a law and then determine whether it's the right law?

Some Hon. Senators: Hear, hear.

The Hon. the Speaker: Senator Harder's time has expired. Is it your wish that he have time to respond to the question?

Hon. Senators: Agreed.

Senator Harder: Thank you for your question. It's important for me to be a little clearer than I've obviously been. The bill before us is a response to the court ruling, and through the eligibility criteria it makes clear to whom this bill applies.

It also ensures that there is clarity to the medical and assistance- providing community as to what legal protections they would have. It also predicts that there are other groups. We ought to have greater engagement on discussing the implications of providing access to medical assistance in dying to those groups. In clause 9, there are very specific references. That might be added to, as I predicted in my previous answer.

There is also the mandatory review. You've got 180 days for studies to commence. We could, if it was the will of the chamber, define an end-point for those studies to report back and be tabled in the chamber. There is an automatic review.

I'm afraid this is a rather unique piece of legislation that is beginning a legal framework for an issue we have never dealt with in this country, and as Senator Wallace indicated, very few countries have.

So, yes, I am saying that we should proceed with the caution and the balance of this bill, but the bill itself predicts and establishes parameters for further discussion in the public and ultimately in this chamber as we deal with the implications of those studies in the years ahead.