Bill C-62: Senator Dalphond Questions Ministers in Committee of the Whole

By: The Hon. Pierre Dalphond

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The Senate resolved in Committee of the Whole in order to receive the Honourable Mark Holland, P.C., M.P., Minister of Health, and the Honourable Arif Virani, P.C., M.P., Minister of Justice and Attorney General of Canada, each accompanied by two officials, respecting the subject matter of Bill C-62, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), No. 2.

Senator Dalphond: First, I would like to thank both ministers for being here this evening. I know that we have been in this Committee of the Whole for two hours already. I realize that I’m the final hurdle that you have to clear before you’re free to go. I will ask you some questions, but I also want to look to the future. Senator Dagenais covered part of what I wanted to ask you.

We mentioned the Select Committee on the Evolution of the Act Respecting End-of-Life Care, which concluded that there was no medical or societal consensus to authorize access to MAID in cases where a mental illness is the sole underlying condition. The Quebec National Assembly subsequently amended the Act Respecting End-of-Life Care to specifically exclude access to MAID when mental illness is the sole underlying condition.

However, the select committee also recommended that we move ahead with advance requests, particularly for illnesses like Alzheimer’s, which is an irremediable diagnosis and can deprive the patient of the ability to choose an end of life that is dignified, according to the patient’s own criteria. Last week, three Quebec ministers asked you to respond to this, and that is what Senator Dagenais alluded to in his question. I want to add that polls show that 85% of Canadians — including a very large majority of Albertans — agree that advance requests should be authorized in irremediable cases like Alzheimer’s.

Is the government listening to the 85% of Canadians who are ready and to the Quebec National Assembly and the three Quebec ministers who are asking you to get this done?

Mr. Virani: Thank you, senator. With regard to the three ministers you mentioned, I am having discussions with them, including Minister Simon Jolin-Barrette. I told him the same thing I told the House: We need to be having this conversation and talk about this aspect, but we must be careful and not cut corners, given the complexity of the circumstances.

We are talking about a situation where people would make a request right now but might only receive MAID 20 or even 40 years down the road, in completely different circumstances, so certain safeguards have to be in place to cover every aspect and every circumstance that could arise in the future.

That being said, as I just told Senator Dagenais, right from the outset, in 2016, we have moved forward within a national framework regarding the Criminal Code, which applies everywhere in Canada. It is crucial to all Canadians, not only Quebecers, to have that clarity.

I am fully aware of and appreciate the leadership that Quebecers have shown concerning MAID. The federal government will continue to be engaged on that front.

Senator Dalphond: My question is for Mr. Holland. Can you tell us whether you are currently consulting with the other provinces for other reasons? Are you willing to commit to discussing what you referred to as a national approach to advance requests with the provincial ministers?

Mr. Holland: Absolutely. This is a really complex issue. Take, for example, Alzheimer’s. That is a really difficult situation. When a patient has dementia, one member of their family might feel ready for medical assistance in dying to be administered, while another family member might not. The person with dementia will no longer be able to explain their choice and position, and it will be up to the doctors or the health care system to find a solution. That is a really complicated situation.

I completely understand the reasons why there is a lot of support for advance requests, because there are a lot of people, not just in Quebec but across the country, who want access to such an option. We will continue to discuss the issue of advance requests with the provinces and territories, while also continuing to discuss the issues related to mental illness. We will continue with the discussions.

Senator Dalphond: I have one final question for the Minister of Justice. In Quebec, some people — including politicians and professors of constitutional law — have been saying in the media that Quebec could go ahead with advance requests even if the Criminal Code isn’t amended, because amending the Criminal Code isn’t actually necessary. Do you agree, minister, with these professors of constitutional law and others who believe that amending the Criminal Code isn’t necessary for Quebec to allow advance requests?

Mr. Virani: Thank you very much for the question. All I can say is that the fact that MAID is delivered through provincial health care systems, as I mentioned earlier . . . Actually, all of that falls under a single law called the Criminal Code of Canada.

I’ll continue in English. When we talk about medical assistance in dying, what we’ve done since the start in 2016 is allow for an exception to prohibitions that relate to causing the death of an individual or the charge of murder under the Criminal Code. It’s very critical, when we understand that the context in which it’s placed in the Criminal Code of Canada, that steps taken around the country are cognizant of that fact. I would say that there is a concern about advanced requests. We’re alive to that concern. An expert panel was struck to deal with that concern and we have reviewed that particular study. We’re reviewing what Quebec is seeking to do, but our approach from the start has always been to proceed with caution and prudence, always ensuring that there is a balance between the autonomy and dignity of an individual, and that there are safeguards in place to protect those who could be victimized.

Senator Dalphond: So if Quebec were to proceed without the Criminal Code amendment, the federal government would consider the situation to be unconstitutional?

Mr. Virani: I’m not going to speculate about what a Quebec government might do going forward, Senator Dalphond. What I would say to you is that the conversation has begun about the issue of advanced directives. What we’re dealing with here is mental illness.

I want to stress that we have already responded to the will of the Government of Quebec regarding the fact that access to MAID cannot be provided when mental illness is the sole underlying medical condition. On that specific aspect, we are listening. As far as the other context goes, we will continue the conversation.

Senator Dalphond: Thank you very much, ministers.

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