Criminal Code
Bill to Amend--Third Reading--Debate
February 11, 2021
At paragraph 132 of Carter, the Supreme Court stated the following:
In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.
What follows, according to the court, is in the hands of the physicians’ colleges, Parliament and the provincial legislatures. That’s exactly what happened after Carter. Parliament and provincial legislatures legislated, and the physicians’ colleges devised a series of rules, each in their own area of expertise.
According to the CEO of the Federation of Medical Regulatory Authorities of Canada, who appeared before the Standing Senate Committee on Legal and Constitutional Affairs, the organization’s stance is that the physician’s role is to inform the patient, not to provide counselling. According to the federation, the matter should remain within the jurisdiction of the provinces and the provincial organizations that develop physician codes of ethics, as is currently the case.
Some of my colleagues referred to section 24 of Quebec’s Code of Ethics of Physicians and section 31 of Quebec’s Act Respecting End-of-Life Care. Another witness who appeared before the committee stated that professional orders whose authority rests on protection of the public have all the authority they need in the provinces to oversee the training and mentoring of physicians and establish practice directives and physician codes of conduct.
Dr. Naud, another witness who appeared before the committee, said, and I quote:
Consequently, there is no risk that patients are being pressed to choose medical assistance in dying; what we’re seeing now is exactly the contrary.
According to him, a patient’s choice to request medical assistance in dying is never an impulsive one or made lightly. The executive director and CEO of the Federation of Medical Regulatory Authorities of Canada reiterated the following, and I quote:
Physicians who conscientiously object still need to act in the best interests of the patient . . . .
That is what the Ontario Court of Appeal found to be a good compromise between the interests of patients and a physician’s right to religious freedom.
There does not appear to be any substantive difference between a physician administering medical assistance in dying at a patient’s request and a physician choosing, on his own initiative, to administer continuous palliative sedation to a patient outside the framework for medical assistance in dying. In both cases, the physician is administering substances that end a person’s life as part of a procedure specific to each of those two contexts.
I find it intriguing that the witnesses who testified in committee to advocate for their conscientious right to refuse to refer a patient requesting medical assistance in dying to another doctor did not have the same conscientious objection to ongoing terminal sedation, a procedure that has been administered for decades, at the physician’s own initiative. Thank you.
Honourable senators, I rise to speak to the theme of conscience rights under Bill C-7. I feel this is the appropriate theme and the right time to voice my concern over the direction that this debate has gone at certain times.
In a discussion around conscience rights and the expectation that this bill places on medical practitioners, many without their consent, an equally valid discussion is the conscience rights of senators as we debate, amend and vote on this bill. I think most of our colleagues have been impacted by this legislation at some point in our lives, if not within our own immediate or extended families, friends, neighbours and colleagues —
Senator McCallum, I have to stop you. We have interpretation issues.
Senator McCallum, I believe you are experiencing technical difficulty because on this end we see that you are unmuted. Senator McCallum, you still have five minutes. I will go to Senator Mégie for her comments, and we’ll come back to you after her to see if the issue has been resolved.
I want to correct the record with regard to continuous palliative sedation, which is administered during the last two weeks of life, when pain or other symptoms become unbearable for the person. The only way to provide relief so they can have a peaceful death is to administer drugs that render them unconscious. These drugs may be administered continuously or intermittently, and if it’s the latter, the person could wake up.
These drugs do not induce death; rather, they allow time for the person’s natural death to occur, when it’s supposed to occur, while preventing them from feeling excruciating pain or choking.
I wanted to correct the record on that. The aim of palliative sedation is not to kill the patient, but rather to alleviate suffering before they die. Thank you.
This is a critical piece of legislation that can stir visceral emotions that understandably have the possibility of hasty reactions and decision that can have far-reaching and ill-considered unintended consequences.
I have noted during the course of debate on Bill C-7 the numerous speeches of senators who have had their own personal experiences with assisted dying. This has given honourable senators a specific lens through which they view this legislation, and that lens can sometimes impact one’s objectivity. The heady expectation of our job is a fine line to walk, and the blending of our collective and personal emotions and experiences with such sensitive themes and such a delicate piece of legislation is a difficult thing to deny. However, I would urge my colleagues to try and ensure that objectivity and the facts we have heard from witnesses and Canadian citizens guide our judgment on this bill.
We have a sacred obligation in our role as senators to ensure minority rights are not only understood but are also given agency. Whether these individuals be considered minorities based on their race, disability, religion, creed, sexuality or any other relevant defining feature, we senators have a duty to ensure their voices and concerns are elevated and appropriately considered. Having one or multiple of these groups feel threatened and cast aside by a bill we are considering in the Senate should activate bells and red flags that greater diligence is required.
Honourable senators, we are placed at a disadvantage when appropriately balancing the concerns and recommendations we have heard from many disparate groups and points of view. We can access statistics for how many Canadians have accessed MAID, but we cannot access the number of disabled, racialized Canadians or health professionals who feel their concerns are not being heard, or feel that this piece of legislation could put their lives or their patients in danger. Without adequate and fulsome work being done to ensure these minority voices are being accommodated, we are putting certain groups at risk of being further disadvantaged, marginalized and/or quieted.
Despite the amendments that have been put forward to try to correct some of this bill’s shortcomings, we still have a bill before us that is considered discriminatory by a number of concerned groups and people who feel they may be an unintended consequence of this bill. I think we would all agree that one such case of an unintended consequence in a matter of life and death is one too many.
As a First Nations senator, I have seen the reality on reserve. I have seen elders who die in pain, but who do so with the acceptance and acknowledgment that this is part of their life’s journey. I am concerned about the message this bill sends to our First Nations youth and the cultural ramifications it could have, wherein they arrive at the end of their life’s journey with the belief that the sacredness with which life used to be revered will be diluted and made to feel unimportant and less consequential. I am concerned that the message our First Nations youth are left with is that their life is not sacred and appreciated, as had been with their elders, and that their life doesn’t carry the same weight and meaning. This is because we now have people who are here to help you die.
It is this issue and various other concerns that I have heard from a number of other groups across the country that form the conscience rights and conscience decisions with which I vote on this bill and its amendment.
Honourable senators, in my life, I too have been impacted by the concept of assisted dying, as many of you have. However, I am striving to not let my personal experience impact on my duty and expectation, to give voice and agency to those minority groups that feel unheard and left vulnerable by this bill. As such, it is with great sincerity that I urge all senators to do the same and to strive to approach this bill with objectivity and with the interest of all Canadians, equally, front of mind. Thank you.
Do any other honourable senators wish to intervene in debate on the theme of conscience rights?
If not, debate on this theme is considered concluded, and the Senate can proceed with debate on the next theme, which is the review process and coming into force of the act.
Your Honour, I will be presenting an amendment at the end of my comments.
Honourable senators, it’s an honour to enter the debate on Bill C-7 this evening. I’m a member of the Standing Senate Committee on Legal and Constitutional Affairs, and I listened carefully to the testimony of the witnesses. I was profoundly moved by the courage, honesty and passion of the many men and women who came before us last week. I’m grateful for all they did to help us in our deliberations.
As the hours and the testimony rolled on, I became acutely aware of the importance of this legislation and the impact of MAID on the various segments of our society. One senator remarked that this issue is the most important one of his long career in the Senate, and I tend to agree.
Life and death matters leave very little room for compromise. For me, this was obvious throughout the committee hearings, and it remains so as we work through the various debates here in the chamber.
From beginning to end at the committee and in our debates here in the chamber, it is also obvious that not having a thorough parliamentary review completed in advance of Bill C-7 was most unfortunate. It was not supposed to be this way. We have heard a number of explanations as to why we are without the guidance and recommendations of the Parliamentary Review Committee that was required in Bill C-14, including a minority Parliament and the pandemic. A third reason was brought forward by Minister Lametti who, in his testimony, implied that there was some kind of a logjam in the negotiations around the formation of the Review Committee.
I’d like to thank Senator Boniface for pursuing an excellent line of questioning on this issue, both during the pre-study of Bill C-7 in December and the committee meetings last week. Her questions brought this third issue to light.
If one reads the language of Bill C-14, it is clear that organizational details are vague regarding the contemplated parliamentary review process, and with the benefit of hindsight, probably left too much to negotiation. The amendment that will be proposed shortly will bring more clarity to the review process that everyone seems to agree needs to go forward. The amendment provides a clear mechanism and aims to reduce the need for negotiations later, which as we now understand, is a big risk to getting a project like this off the ground.
The proposed amendment calls for the establishment of a joint parliamentary committee, and specific numbers of senators and MPs on that committee, aligned in the spirit of the prior joint committee’s make-up in 2016. It also calls for deadlines for the establishment of the joint committee and a reporting deadline, and an evergreen clause that requires the process to be reset if prorogation or an election intervenes.
Now, let me assure you, on behalf of both me and Senator Boniface, who will shortly second this amendment, there is no pride of authorship with this amendment. If you have subamendments that would improve or clarify our intentions here, please feel free to put them forward. It is very important that we have a solid, clear and fair amendment that hopefully encourages the folks in the other place to simply say “yes” to it.
Instead of rejecting the amendment because you don’t agree with the number of senators or the time frames or other details, again, please put a subamendment forward, because passing Bill C-7 with a hope and a wish or even a promise that the review will happen seems to me to be a poor bet. We need to be clear, in writing, in the bill.
I don’t want to embarrass anyone by providing past examples of broken promises given to the Senate or to senators about actions that will happen if only we would just pass their bill. In my eight years here in the Senate, I have seen this from this government and from past governments. Clearly, broken promises are a non-partisan program.
There’s an old saying: Fool me once, shame on you, fool me twice, shame on me. It would be a terrible shame if we were to find ourselves one, two or three years from now with a new court-ordered bill and a deadline that we would be up against, and find ourselves asking how we got here again.
