Senator Serge Joyal—Second reading of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)Published on 2 June 2016 Hansard and Statements by Senator Serge Joyal (retired)
Hon. Serge Joyal:
Honourable senators, I think there is only one question to be asked in relation to Bill C-14: Are we ready, as a Parliament, to deprive Canadians of their rights to medical assistance in dying when they are competent adults, when they have a grievous and irremediable health condition, and when they are in intolerable suffering? Period. That’s the question.
Are we ready to deprive Canadians, who are not terminally ill or close to death and who have the right to medical assistance in dying according to the Supreme Court, to deprive them from the benefit of their Charter right? That’s the essential question we must face.
There is only one issue with that bill and it is that one.
In my opinion, the way the government has addressed it is unacceptable, and I’ll tell you why. In Bill C-14, page 5, it amends the Criminal Code in first restating the conditions set by the Supreme Court to have access to medical assistance in dying. The bill says, at 241.2, you have to be a competent adult. Competence means capacity to decide for yourself. Second, you have to have a grievous and irremediable medical condition, and you have to give an informed consent in the context that you are suffering intolerably.
But the sneaky approach of the drafter of this bill is that they have defined “grievous and irremediable medical condition” in a way to deny access to the rights that the Supreme Court stated that Canadians enjoy.
They defined “grievous and irremediable” by adding all kinds of steps and twists that finally lead you to conclude that only those who are terminally ill or close to death have, in fact, access to medical assistance in dying. That’s very serious, because in doing so they instruct a judge who would have to implement the Criminal Code to read each and every section because it’s criminal law. It’s not social policy whereby you have generous intention. This is the Criminal Code. A judge will be seized with this bill and will have to read each and every section of the definition of “grievous and irremediable” and will have to apply it to the case or the allegation of criminal conduct to be pronounced on.
This bill does not state clearly, like the Quebec legislation does, that those with access to medical assistance in dying are in their final weeks and days because they are terminally ill and the predictability of death is there. Rather, the bill leads you to believe that in fact you will have access to medical assistance in dying, but your natural death has to be reasonably foreseeable. And “reasonably foreseeable” is a Criminal Code concept. It is not a medical concept, honourable senators, and I will explain why.
“Reasonably foreseeable” is a Criminal Code concept based essentially on predictability. Predictability means something will happen, not proximity of time. Reasonably foreseeable is predictability, not proximity of time or death. The concept of reasonably foreseeable death adds the concept of proximity to that of predictability, and that’s how the bill twists the Criminal Code, using the Criminal Code to exclude those who would normally have access to medical assistance in dying if they suffer from an intolerable, grievous and irremediable disease and are competent to request medical assistance in dying.
That’s why we are being asked to sanction that kind of distorted route, to achieve the result of excluding those recognized in the Supreme Court decision as having access to medical assistance in dying.
And all the rest is convolution, honourable senators. The example is the conduct of the lawyers representing the Attorney General of Canada in the Alberta Court of Appeal. Three judges pronounced on the admissibility of medical assistance in dying for a patient who is not suffering but his foreseeable death was predictable.
The government was stuck with the decision of the British Columbia court that had recognized the right of a citizen who is not terminally ill to have access to medical assistance in dying. The government was caught with that decision at the very moment that Bill C-14 was tabled in the other place. And what did the lawyers of the government plead?
I will refer to the factum of the lawyers of the federal government last month in relation to medical assistance in dying. They tried to plead that: “The definition of grievous and irremediable must be understood in relation to the facts of Carter. Throughout the judgment, the court focused on the factual circumstances of Gloria Taylor who the court characterized as the impetus of this case. Gloria Taylor was terminally ill with ALS, or Lou Gehrig’s disease. She knew it but did not want to die slowly piece by piece. In 2010 she had been told she would die within a year, though she lived beyond that estimate. The court’s understanding of the reach of the term contemplates the situation at the end of life.”
In other words, the government lawyers pleaded in the Court of Appeal of Alberta that you have to be terminally ill to have access to medical assistance in dying. The three judges said no, that’s not the reading of the Carter decision criteria. That decision, honourable senators, is May 17, two weeks ago.
What happened less than a week ago? There was another decision, this time of the Ontario court on May 24. This is Judge Perell of the Ontario court:
In A.B. v. Canada (Attorney General), supra —
— A and B is the name of the patient requesting the assistance of dying —
— while I said that it would be sufficient that a person’s grievous medical condition was life-threatening or terminal —
— listen to this —
— I did not say that a terminal illness was a necessary precondition for a constitutional exemption. The gravamen of a grievous and irremediable medical condition is not whether the illness, disease, or disability is terminal but the grievousness is the threat the medical condition poses to a person’s life and its interference with the quality of that person’s life.
Can it be any clearer than that? Those are the latest decisions, just over a week ago, with the unanimous Court of Appeal and the Supreme Court of Ontario.
In my humble opinion, honourable senators, this bill is a twist to try to circumvent the right that has been recognized by the Supreme Court in relation to physician-assisted death. And again read the definition of “grievous and irremediable medical condition.” It’s full of all kinds of little concepts that a judge will have to apply in the Criminal Code. Especially when they say they have a serious and incurable illness, disease or disability. “Incurable.” You will have to prove to the judge that it is incurable. Yesterday we asked the question: What is incurable? Senator Cowan quoted the President of the College of Physicians and Surgeons of Ontario as to what incurable is. I quote Dr. Kirsh on May 10:
The requirement that conditions be incurable suggests that patients must explore and undertake all treatment options or cures before they can request medical aid in dying. This would force patients to pursue treatments that they do not find acceptable.
So what does it mean? It means that they are trying to circumvent one of the criteria of Carter in paragraph 127, that a person is not compelled to incur treatment. “Incurable” comes in by the back door and negates that condition of paragraph 127. That’s what I don’t like in that bill. I don’t like it because it does not recognize the argument that the minister has given us to justify that the bill would be open for persons or patients that are close to their final days.
And what did the minister say? The minister said that we want to protect the vulnerable to ensure that we are not supportive of suicide, and Canadians are not yet there. Well, Canadians were not yet there on gay marriage; they were not yet there on abortion. I remember the debate we had here almost 11 years from this date. When you recognize the rights of minorities, it’s always difficult for the majority.
It’s not because a poll tells me that Canadians are 61 per cent in favour for the terminally ill but only at 42 per cent for those who suffer intolerably of a grievous and irremediable condition that the reading of the Supreme Court that they have access to medical assistance in dying should be denied in a bill, especially with the concept of reasonably foreseeable death. As I said to you, this concept in law doesn’t fly.
And it’s not me who is saying this; it’s the Canadian bar. It’s the lawyers whose profession has been busy interpreting what we call the law of health.
I want to quote the testimony of Mr. Jean-Pierre Ménard when he testified before our Legal Committee. He was one of the main counsel for the Quebec government when they drafted the legislation. In my opinion, he summarized very well what the Canadian bar and the bar of Quebec stated. He said the following on the concept of foreseeable death:
However, the reasonably foreseeable death criterion is vague and infringes Canadians’ constitutional rights, depending on how it is interpreted. It is not operational and does not correspond to the law.
Earlier in the committee he stated:
Proposed subsection 241.2(1) reiterates the Carter criteria, but proposed subsection 241.2(2) diminishes and dilutes those criteria.
This states it better than what I’m trying, honourable senators, to convince you of, that this paragraph should be removed from the bill. It should be removed from the bill to make the bill Charter compliant, to make the bill respectful of the rights of a patient who is competent, has a grevious and irremediable health condition and is in intolerable suffering, that that person has a right to medical assistance in dying. That is, in my opinion, honourable senators, the only challenge and real challenge in relation to the bill.
I don’t mean that protecting freedom of conscience is not important. It is as important as protecting sexual orientation or protecting race or protecting religion. It is as important as that. We have to be mindful of that, especially in this chamber.
But in reading this bill, to be asked as a legislator to sanction a parliamentary law that will strike access to medical assistance in dying to a group of Canadians who are a minority, as a matter of fact — you are totally right, Senator Moore. Of the 29 decisions that have been given by the Canadian courts in the last four months, only four dealt with patients that are not in a terminally ill condition.
It is important, honourable senators, that when we study this legislation in detail, we try to understand the challenge that we face. And the challenge that we face is to understand the impact of this decision.
Through the chairmanship of Senator Ogilvie and MP Oliphant, we wrestled for two months last winter, in the days of snowstorms, to understand the implications of the Carter decision. We drafted a report and that report, in my opinion, is as valuable today as it was three months ago. If the government has decided to set aside the recommendations and restrict the rights, it at least should have honoured the jurisprudence of Canada that when you exclude a group of citizens from the rights that they have access to according to the Charter, the government has to establish a system of minimal impairment. In other words, if you conclude that the category of patients who are not terminally ill but are more vulnerable, the approach is not to exclude them and wipe them out. The approach of the court is that you ask yourselves what additional safeguards can be put in place to ensure we protect those people. The government has decided to totally exclude them from the bill by a stroke of the pen in including all those conditions, the sneaky condition of the second paragraph, which is what we didn’t get from the minister yesterday. And I deplore it.
If the minister told us, “We didn’t have time to establish a regime that would meet those objectives of protecting the vulnerable, and we think they are more at risk when they are not at the end of their life,” I would have said that Canadian laws are full of examples where we have devised an additional system of protection. But that’s not what the government decided. The government decided to go by the back door and exclude them on the pretext of section 1 of the Charter.
And the courts are very demanding when under section 7 you exclude somebody from their right to life, liberty and security. If you claim that in a free and democratic society you can exclude people from access to their right to life, liberty and security of the person, the test and the bar is very high.
I read the background documents, and these are the general objectives: protecting the vulnerable, preventing suicide and Canadians are not yet there. Well, those are all political objectives that have really no reasoning directly linked to the persons who would need those additional protections. That’s why I think this bill fails.
Honourable senators, you are aware of how many times during the last nine years I stood up in this chamber and criticized the former government’s bills in relation to minimum penalties, in relation to Justice Nadon’s appointment, in relation to a surcharge for remand. Senator Baker and I were always rising to pinpoint the failure of those bills in relation to the Charter. Most of the time, unfortunately, we were proven right.
Therefore, to expect that I’m going to support a bill today whose conclusion, as I read it, is to deprive a group of Canadians of their rights, I cannot vote for that, honourable senators, and I will plead with you that we amend and remove that section of the bill. I think that’s the only honourable decision that we can take as a group.
Thank you, honourable senators.
Hon. Senators: Hear, hear!