Honourable senators, I rise today to speak to the matter of requiring terminal illness and end of life in Bill C-14. This is based on a recommendation that was passed by a majority of our Senate Legal and Constitutional Affairs Committee during our pre-study of Bill C-14.

As many of you know, I believe strongly that physician-assisted suicide should only be extended to individuals who are terminally ill and are at the end of their lives. I have maintained this position since I first became involved with this issue more than a year ago when I opposed private Senate Bill S-225, a bill which would have allowed a much more permissive regime of access to assisted suicide.

Some senators throughout this debate have spoken about physician-assisted suicide as though Canada is an outlier on the world stage by not already having an assisted-dying regime in place. In fact only nine jurisdictions worldwide permit euthanasia or assisted suicide. Of those, six jurisdictions, two thirds, require terminal illness for an individual to qualify for assisted suicide, including three U.S. states, and of course the Province of Quebec.

Now Quebec arrived at that decision after deliberating on the issue of physician-assisted suicide very carefully for six years. We have had this legislation in the Senate for about five sitting days. It would be interesting to note whether given the benefit of further time to study this issue we might not have come to a similar conclusion regarding terminal illness.

Canadians have repeatedly made their views on physician-assisted suicide known to Parliament, but the decision rests with us in this chamber to determine whether we will heed that call or not. Almost to a person, the hundreds of people I have personally spoken to on the topic of physician-assisted suicide are shocked to hear that terminal illness is not a requirement under Bill C-14. Evidence confirms that national polls reflect similar views. Polls show that Canadians overwhelmingly believe the terminally ill should be able to access assisted suicide, but support plummets when people are asked about non-terminal illnesses and conditions.

For example, in an Angus Reid poll earlier this year, 78 per cent of respondents said assisted suicide should not be allowed when a person has severe psychological suffering in the absence of terminal illness. Eighty-eight per cent also opposed extending assisted suicide to 16- and 17-year-olds with psychological suffering where no terminal illness is involved.

In a scenario where the patient is terminally ill and has six months to live, 76 per cent of respondents agreed assisted suicide could be extended. In contrast, that number fell to 36 per cent in a scenario where "a person with multiple conditions like arthritis and diabetes feels overwhelmed and wants to die."

Consultations conducted by the federal government's external review panel showed this as well. The panel's report indicated that:

Respondents were more likely to agree physician-assisted death should be allowed when a person faces significant, life-threatening and/or progressive conditions.

Similarly, their large poll sample of more than 2,000 people also found:

Participants were generally more concerned about risks for persons who are mentally ill, especially those with episodic conditions, and for persons who are isolated or lonely.

Canadians have indicated that they expect physician-assisted suicide will be accessible in situations where a patient is terminal or at the end of life, but they expect stringent safeguards if that is not the case.

Honourable senators, I have heard arguments in this chamber stating that we should disregard public opinion on this issue, that polls don't matter where rights are involved; but I think that argument misses the point. Assisted dying is an issue that impacts every single Canadian. We will all experience the loss of our loved ones, and we will all die ourselves. It is inevitable.

Canadians rightfully expect that they should get to have a voice in determining what is acceptable in their society, especially since physician-assisted suicide necessarily involves the state in ending people's lives.

We as parliamentarians need to consider the gravity of our votes on this legislation and what they represent. There are 1.1 million people in Saskatchewan but only 20 people from Saskatchewan will get to vote on this assisted suicide legislation: 14 MPs, and six senators. We should not lose sight of the enormity of that choice, and yes, I think we should take into account the wishes of Canadians before we make it. Who are we, honourable senators, to override the will of Canadians because we think we know better?

We have discussed at length the constitutionality of Bill C-14 and whether the bill goes too far or not far enough, depending on one's perspective. A significant number of renowned constitutional lawyers and professors testified before our Senate Legal and Constitutional Affairs Committee that Bill C-14 does comply with the Canadian Charter of Rights. Highly respected constitutional law Professor Dwight Dean Newman declared:

. . . the Carter judgment is not legislative in character. That's simply not the role of the Supreme Court, and it's not the role of Parliament to abdicate to the Supreme Court as if it were a legislative body. So the specific wording of the Supreme Court of Canada judgment needn't be entirely determinative.

Professor Newman continued:

. . . the court's declaration is not a statute, and it's ultimately Parliament's responsibility to craft a statutory regime that meets the objectives that Parliament determines to be most appropriate.

Professor Hamish Stewart had this to say:

. . . it may nonetheless survive a constitutional challenge as a justified limit on section 7 rights if the government can satisfy the court that it's the best that can be done to separate the vulnerable from the non-vulnerable who want to access the assisted suicide regime.

Constitutional lawyer Gerald Chipeur and Assistant Law Professor Tom McMorrow both reiterated Parliament's right and responsibility to legislate complex regulatory regimes. Professor McMorrow wrote in Policy Options:

The Supreme Court did not draw the line at having a terminal condition, but that does not necessarily mean Parliament can't. What needs to be shown is that restrictions constitute "reasonable limits" — not what the Court may view as "optimal" ones.

Indeed, it is necessary to draw some of those reasonable limits in order to protect the vulnerable. Professor Trudo Lemmens has stated that in Bill C-14:

. . . we have to balance autonomy with protection of vulnerable people and do the least damage to respect for human life. I believe that that requires that the provision of euthanasia be limited to people who are terminally ill.

Clearly the matter of whether to narrow the criteria for eligibility to access physician-assisted death is within the purview of the Liberal government. In fact, last month, at the same time when Bill C-14 was being debated in the House of Commons, federal government lawyers were before the Alberta Court of Appeal in the case of E.F. arguing for the inclusion of terminal illness in the interpretation of the Supreme Court of Canada's Carter decision.

It is the duty of the federal government to ensure that this law reflects the views of Canadians, that strict safeguards are implemented around the process of physician-assisted suicide and that this bill is amended accordingly.

Motion in Amendment

Hon. Denise Batters: 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, on page 5,

(a) by adding after line 34 the following:

"(b.1) they are at the end of life;"; and

(b) by adding after line 36 (as replaced by the decision of the Senate on June 8, 2016) the following:

"(c.1) their grievous and irremediable medical condition is a terminal disease or illness;".

Thank you.

The Hon. the Speaker: It was moved by the Honourable Senator Batters, seconded by Honourable Senator Tannas:

That Bill C-14, as amended, be not now read a third time, but that it be amended in clause 3, on page 5,

(a) by adding after line 34 the following:

"(b.1) they are at the end of life;"; and

(b) by adding after line 36 (as replaced by the decision of the Senate on June 8, 2016) the following:

"(c.1) their grievous and irremediable medical condition is a terminal disease or illness;"

On debate.

Are senators ready for the question?

Some Hon. Senators: Question.

The Hon. the Speaker: Senator Fraser?

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): This is actually by way of a question to Senator Batters.

I think we're all frantically flipping through our copies of the bill because you, as was your right, chose not to share these amendments with us ahead of time. I wonder if you could give us a little explanation of exactly how it all fits in and what it does.

Senator Batters: Absolutely. I have been speaking about this issue of terminal illness, end of life for quite some time so it won't come as a surprise to probably anybody in this chamber that this is something I felt strongly about.

This has been modified slightly to take into account what occurred last night so that it's appropriately worded, but what it requires is that someone who wants to access assisted suicide it will be an eligibility requirement that they be at the end of life, as is the case in Quebec, as is the case in six out of the nine jurisdictions worldwide where this exists and, as well, that it is a terminal disease or illness.

The Hon. the Speaker: Point of order, Senator Fraser?

Point of Order

Hon. Joan Fraser (Deputy Leader of the Senate Liberals): Your Honour, I have not had time to check the authorities, and I hope that you have, but it seems to me that this amendment is in direct contradiction to the amendment that this house adopted 24 hours ago. And I did believe that it was not in order to reconsider decisions that had been made in a given session of the Senate.

I hope other senators can contribute to this. I am not in a position to produce authorities, but this, to me, feels like something that is out of order.

The Hon. the Speaker: Thank you for raising the point, Senator Fraser.

Rule 10-5 allows for any senator at any time to move reconsideration of any clause previously moved before the actual adoption of the bill. So according to rule 10-5, the amendment is in order.

Senator Batters: Could I respond to that as well?

The Hon. the Speaker: Question or on debate? Senator Raine?

Senator Raine: Do you want to respond?

The Hon. the Speaker: There was a point of order; the point of order has been dealt with. Are you asking a question or would you like to speak on debate, Senator Raine?

Hon. Nancy Greene Raine: I would like to ask a question of Senator Batters.

The Hon. the Speaker: Are you prepared to answer a question, Senator Batters?

Senator Batters: Yes, of course.

Senator Raine: On Page 6 of the bill, subsection 2(d), it says that the criteria include that:

(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

I would like to know, does your amendment square with that clause?

Senator Batters: Senator Raine, actually last night what happened with Senator Joyal's amendment, that entire subsection 2, grievous and irremediable medical condition, was struck out with his amendment. He removed the entire part of it and only a small portion was put into the previous section, so the reasonably foreseeable natural death is no longer a part of this bill. That's why mine was slightly amended and indicates in the amendment, as replaced by the decision of the Senate on June 8, 2016.

That's why my particular amendment will go into the previous page, page 5. There is a new (b.1) that says "they are at the end of life." Then there is a new (c.1) on that same page that says, "The grievous and irremediable medical condition is a terminal disease or illness."

Senator Raine: I would like confirmation that you realize this tightens up the parameters of those who qualify much tighter than it was in the original bill where the bill was without a prognosis necessarily having been made as to the specific length of time that they have remaining.

Senator Batters: I do realize that, and that is why I'm bringing it. I have indicated for quite some time that Canadians expect terminal illness end of life to be required. Whenever I speak to any Canadian that I've talked to about it — and as I say it has been hundreds, just in personal speeches that I have made or individual conversations with people — they are always shocked to find out that this particular bill, assisted suicide in Canada, does not require terminal illness end of life. That is what they expect and that's why I thought it was important to bring this particular amendment.

If I can just say as well, I note that yesterday, hours before the Senate voted on the particular amendment last night, Justice Minister Wilson-Raybould indicated that if that was the particular amendment, the one that was brought last night, the House of Commons would be sending that back to us and not accepting it.

Therefore, I want to make sure that we have an amendment that has a reasonable chance of passing, and the Liberal government of supporting.