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Second reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Second reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Second reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)

Published on 16 December 2020 Hansard and Statements by Senator Pierre J. Dalphond

Hon. Pierre J. Dalphond: Colleagues, I rise today to speak on debate at second reading of Bill C-7, a parliamentary step that is defined as follows in the House of Commons Procedure and Practice, Second Edition, 2009:

Central to the second reading stage is a general debate on the principle of a bill. Although the Standing Orders make no specific reference to this practice, it is deeply rooted in the procedural tradition of the House. Accordingly, debate must focus on the principle of the bill and not on its individual provisions.

In other words, our vote at second reading will either be in support or in opposition to the principle of this bill, which is to expand access to MAID.

This bill stems from a judgment of the Quebec Superior Court rendered on September 11, 2019, that rejected the arguments of both the Attorney General of Canada and the Attorney General of Quebec about the validity of one of the eligibility criteria for MAID called the “reasonably foreseeable natural death” criterion in the Criminal Code and the “end of life” criterion in Quebec’s Act Respecting End-of-Life Care.

Those who were here in June 2016 when Bill C-14 was adopted will remember that the majority of senators agreed that this criterion was contrary to section 7 of the Charter of Rights and Freedoms. On section 7, the Supreme Court of Canada said in 2015, in the case of Carter v. Canada, which was a unanimous judgment:

. . . we do not agree that the existential formulation of the right to life requires an absolute prohibition on assistance in dying, or that individuals cannot “waive” their right to life. This would create a “duty to live”, rather than a “right to life”, and would call into question the legality of any consent to the withdrawal or refusal of lifesaving or life-sustaining treatment. The sanctity of life is one of our most fundamental societal values. Section 7 is rooted in a profound respect for the value of human life. But s. 7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs”. And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect. . . .

However, the government and the House of Commons declined the Senate’s amendment, and the Senate finally decided not to insist. As expected, the criterion was quickly challenged. Only 10 days after the passage of Bill C-14, Julia Lamb, a woman in her twenties with spinal muscular atrophy, and the B.C. Civil Liberties Association launched a constitutional challenge before the Supreme Court of British Columbia.

On June 13, 2017, another challenge was launched before the Quebec Superior Court by Jean Truchon and Nicole Gladu.

Mr. Truchon was 49 at the time. He suffered from spastic cerebral palsy with triparesis since birth. This condition left him completely paralyzed with the exception of his left arm, which was functional and which, until 2012, allowed him to perform certain everyday tasks and to move around in a wheelchair. Mr. Truchon received medical assistance in dying last April.

Ms. Gladu is now 74 years old, and was born before the time of widespread vaccinations against poliomyelitis. She survived an acute paralyzing form of this disease, which she developed at the age of four. She had significant sequelae, including residual paralysis of the left side and severe scoliosis caused by the gradual deformation of her spinal column.

The appeal was perfected and then heard in early 2019. The proceedings lasted 31 days over a period of two months. A total of 24 witnesses were heard, including 17 experts. The court also heard from eight intervenors, including the Council of Canadians with Disabilities, the Canadian Association for Community Living, Christian Legal Fellowship, Collectif des médecins contre l’euthanasie and Dying with Dignity Canada. Several of these groups testified again before the Legal and Constitutional Affairs Committee two weeks ago.

On September 11, 2019, after six months of reflection, Justice Baudouin rendered her decision, a little more than two years after the legal proceedings started, which is normal in cases like this one. Justice Baudouin said the following about the imminent death requirement:

The state-imposed limitation that death be reasonably foreseeable before medical assistance in dying may be requested is overbroad. It is so because it prevents some people, competent and fully informed, such as Mr. Truchon and Ms. Gladu, who meet every other protective condition of the law and who express a rational desire to end the suffering caused by their grievous and irremediable condition, from requesting such assistance.

Justice Baudouin continued as follows:

In this sense, the limitation largely exceeds the object to such an extent that it has no real connection to the object of protecting vulnerable persons who might be induced to end their lives in a moment of weakness. It instead forces them to make the cruel choice described by the Supreme Court —

 — in the Carter decision —

 — by imposing that they either suffer intolerably for an undefined period that could last months, even years, or that they take their own lives their own way, all to satisfy a general precautionary principle.

It is interesting to note that the principle of precaution was also recently rejected by the Supreme Court of Canada in Attorney General of Ontario v. G., which senators Gold and Carignan referred to in their excellent speeches.

I will come back to that ruling during study in committee at third reading stage, but for now I will keep to the principle of Bill C-7, namely to expand access to medical assistance in dying.

All of us will remember that at the time of the Truchon judgment, we were going through a general election. In fact, Parliament was dissolved on the same day the judgment was released on September 11, 2019. On October 3, the Quebec government announced it would not file an appeal. A week later, on October 10, during the French electoral debate, Prime Minister Trudeau made a similar announcement.

In other words, both governments decided not to avail themselves of the right to appeal the judgment before the Court of Appeal of Quebec. Most likely a ruling by the Court of Appeal of Quebec on this matter is one case for which leave will most likely be granted by the Supreme Court of Canada. Some witnesses and some members of this chamber believe that not appealing was unwise. While I respect their opinion, I do not share it.

Of course, filing an appeal would have given both governments a few more years to avoid making a decision, pending an appellate process up to the Supreme Court of Canada. Instead, both governments decided to face the music, well aware that at the end of the day it falls squarely on lawmakers, not on the court, to define to what extent MAID should be made available and what safeguards should be implemented.

Of course, eligibility criteria and safeguards adopted by Parliament or by a province must be in compliance with the Charter of Rights and Freedoms. In this regard, the institutional roles of both courts and parliaments are different, as the Supreme Court said recently in Ontario v G:

. . . the legislature is sovereign in the sense that it has exclusive authority to enact, amend, and repeal any law as it sees fit, while courts remain guardians of the Constitution and of individuals’ rights under it.

Colleagues, we often hear that politicians are hiding behind judges’ robes to avoid making difficult decisions, but this time both governments decided to act. They did so in consideration of the teachings — not only of the Quebec Superior Court in Truchon and of the Supreme Court of Canada in Carter, but of this Senate in 2016.

Why? The answer to that question was repeated many times. It is because both governments believed in the principles of autonomy and equality of individuals, including the right not to be forced to resort to other inhumane options like voluntarily stopping eating and drinking, or the use of a violent means to put an end to their enduring and intolerable suffering.

All Canadians were made aware of the Trudeau government’s decision. Canadians had the opportunity to question all candidates about the decision not to appeal Truchon, and thus the very decision to expand access to MAID.

Last week, those elected in the last general election spoke loudly and clearly. Bill C-7 was adopted by 213 of them and opposed by 106. It is important to know that this 2 to 1 majority includes members of all the parties in the House of Commons, including 13 Conservative MPs, all Bloc and NDP MPs then present, and all Green MPs and nearly all Liberal MPs. This is quite significant considering the nature of the bill, its complexity and the larger set of difficult issues it raises of a legal, social, personal and ethical nature.

Colleagues, it is against this backdrop that we are now called upon to vote at second reading of Bill C-7.

I know some of you, like many witnesses we heard at the Standing Senate Committee on Legal and Constitutional Affairs, are opposed to MAID in any form whatsoever. I respect your opinion, but Bill C-7 should not be viewed as another opportunity to oppose MAID in principle.

As the Supreme Court has stated, the government has a constitutional duty to provide access to MAID for Canadians who want to put an end to their enduring and intolerable suffering resulting from an egregious and irremediable condition, and who wish to do so peacefully in a safe setting surrounded by their loved ones. It is a matter of respect for the dignity and autonomy of all citizens in a democracy. For these reasons, I will vote “yea” to second reading of Bill C-7, a bill that seeks to bring an end to denying a constitutionally protected right to many Canadians under section 7 of the Charter.

That does not mean that I support every part of the bill. As you know, I have expressed serious concerns about the proposed exclusion of individuals with a mental illness as a sole underlying condition. Others may wish to have more safeguards in connection with specific situations. Thus, I look forward to debating the various measures proposed in Bill C-7 with colleagues at the committee and at third reading. Thank you, meegwetch.