Motion to Resolve into Committee of the Whole to Consider Subject Matter of Bill C-62—Amendment

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Maybe I will start by offering an answer to Senator Forest’s very good questions and try to understand what we’re trying to achieve and what we are being asked to consider.

Section 3 of the bill is written in legal terms and, in order to understand it, it’s important to understand what was done previously. The Senate amended the bill to include a second pathway for MAID for people whose death was not imminent, but who suffered from an incurable condition causing unbearable suffering. With the second pathway, the government excluded MAID for those suffering from only one condition when the sole condition was mental illness.

However, in cases where people have heart failure or kidney failure, if they are constantly on dialysis, for example, they have the right to receive MAID. If they are waiting for a transplant, but it looks unlikely that they’ll get one, they can apply for MAID. This is true even if it’s someone with a mental illness that doesn’t affect their ability to recognize their situation and their suffering and to accept or refuse dialysis. We must not forget these nuances.

We told the government that people with mental illness should not be prohibited from accessing MAID unless there are mechanisms in place to ensure that people with incurable suffering who are able to assess their situation can have access, with sufficient safeguards.

The House of Commons, the government and the then justice minister accepted that proposal. The House of Commons voted and a majority accepted the proposal, but they increased our deadline from 18 months to 24 months. Everyone wanted a deadline to ensure that we would be ready if we decided to go in that direction.

Before the 24-month deadline was up, the special committee was re-established, and its mission was to assess whether we were ready. It came to the conclusion that we needed another year and that we needed an expert panel to table a report giving us the broad outline, the training required and all that. Then we would be able to determine whether we were ready.

The committee was re-established in October 2023 to study this very issue, in other words, the two-year deadline, two and a half years later because we were getting close to March 17, 2024. March 17 is a very important date. Are we ready this time? That was the mandate of the joint committee. The Senate was represented on this committee, and the senators had to answer that question, just as members of the House of Commons did. Why is March 17, 2024 important? It is the date of the sunset clause, as Senator Saint-Germain explained so well.

In English, it’s a sunset clause. It means that on March 17, if nothing is done, if no bill is passed, the exemptions will end. Therefore, that very day and the day after and the following week, a person that thinks that he is qualifying but the sole health issue is a mental illness will be able to go knock on the door and ask to be assessed. That is a long process. It’s not going to be given the following day. The law provides for 90 days before the time you’re finally assessed and the time you can receive it and the day you receive it you must still consent to it.

It’s not a depressive person who will walk into a clinic on a Friday night and because they broke up the night before, that will get MAID the following Saturday. Forget about what was said in some papers. But the issue here is that if we do nothing on March 17, access will be in full force.

So section 3 says there are two scenarios. Either Bill C-62 is adopted before that date and, therefore, the date of March 17, 2024, will read March 17, 2027. But you never know in Parliament what might happen. We don’t even know sometimes what will happen in the Senate, and maybe it’s good. When it’s too predictable, maybe it’s a sign of something else.

If this bill is not passed, there is a second provision that says when the bill passes, if it’s after March 17, the day it receives Royal Assent — maybe that same day — then it will no longer be possible to access MAID. If it takes three weeks to get there, if we finally vote on the bill after a full study in March and April, and the bill is finally adopted, then it will no longer be possible to access MAID. You will have a very special system. Until March 17, nobody can have access to it. If there is a gap, some people may have access to it, and then the gap will be closed.

Colleagues, I invite you not to walk into that. This is the worst scenario of all scenarios. That gap will be legal chaos, which will put the medical profession in a very awkward situation. People will be wondering, “If I do it, but it becomes illegal next week or next month, will I be sued?” No. It’s going to be terrible for doctors, for MAID assessors and for those who will be entering the system, but the door will shut on them. It will be worse than it is now because they will have faint hope that they will get it, and then the door will be slammed shut.

I’m sure that this bill, if it comes into effect, it will happen within less than 90 days after March 17. It will happen a week or a month later. I can bet you we will sit during break week, if necessary, in April, and that it will be passed, so the 90-day period will not apply. Faint hope will apply to all those who apply and start the process within that period. I don’t want that to happen, because it’s adding more suffering to people due to faint hope. We must prevent that.

The answer is that we have to pass this bill or reject it by March 17. If we reject it, this is the end, and it will be accessible forever, until maybe a change of government reinstitutes the exclusions, but that might not be for a year and a half, maybe longer. In the meantime, there will be a lot of things happening. Many people will receive it, and maybe the mood will change, whatever.

The issue that was before the committee — and Senator Wallin referred to my opinion, saying what is being proposed is clearly unconstitutional. Sorry, but that’s not what I wrote. I wrote that what the committee was proposing risked to be declared unconstitutional. Why? Because what the committee was proposing is that the exclusion of access — the denial of access — continues as long as both the Minister of Health and the Minister of Justice have agreed, after consultation with department officials and all of the provincial and territorial counterparts, that we are ready. Well, I assume if there is a change of government within the next year or year and a half, both ministers will never agree on such a situation.

If that conclusion were reached, then a committee would have to be set up, and that committee would have to work on it at least for about a year before it could come into effect. It was meant to be, as I refer to it in my report, a clearly indeterminate but long period. That was the way it could be read — that it’s a permanent exclusion because it depends on the will of two ministers, and we know that politics may bring ministers to change their minds.

The government responded to that, and what did they say? That it will be three years because they read my dissent, I believe — or maybe I heard — and they felt that indeterminate could be easier to challenge than a specific period, so they put in three years. We know we’re extending it for three years. What will happen next year? There will be an election. So don’t think that this issue is going to be dealt with by Parliament in 2025. Either you go for one year or you go for three years because 2025 is a gap year.

That’s what we have. This is what we’re dealing with. This is what has been proposed to us. Let’s not forget about that.

The second point I want to make is that on February 8, the Department of Justice published a Charter Statement acknowledging that sections 7 and 15 are engaged — the right to life and liberty and the right to equality. They said the debate goes on regarding section 1. The issue that the courts will have to eventually decide, if there is a court challenge, is whether reasonable measures, in a democratic society, are considered to extend if all the provinces are of the view that they are not ready — if the Collège des médecins du Québec is of the view that they are not ready; if the Quebec legislators say that even if it’s legal according to the Criminal Code, it won’t be accessible in Quebec. These are all parts of the puzzle that we have to think about.

This is an issue that, unfortunately, the Legal Committee will not decide. The Legal Committee will not be able to do a better report than the Charter Statement I read. I invite you to read it. It’s on the Department of Justice website. It’s a Charter Statement of February 8.

In my view, this proposal to send it to the Legal Committee is to get what? Well, I’m telling you it is to get less than a Charter Statement, and it cannot be in a day or in a week. The Legal Committee can hear from a few witnesses and prepare a report, and it won’t be as good. The second issue is that it won’t be up to us to decide what is acceptable and reasonable under section 1. It will be left to the courts. The courts are who must answer that question.

Is what has been proposed clearly constitutional? In my view, no. It’s a debatable issue, so it’s not up to us to decide; it’s up to the courts. I think that’s what everybody must understand, and I’m getting a bit tired of hearing that I said it’s unconstitutional. I did not say that. My dissenting opinion is full of nuances in the context, which has evolved, and this new context is three years, not an indefinite period. That’s the second point.

Maybe the Social Affairs Committee could hear from witnesses, but I’m concerned about what the witnesses are supposed to be coming for. I hear now that we want to test — and, sorry, I was supportive of the idea of having Social Affairs give us more information, but what I’m hearing tonight is certainly different from what I thought. What I’m hearing tonight is that we’re going to challenge the provincial assessment of the situation. Sorry, colleagues, it’s not up to us to do that.

If the four parties in the House of Commons come to the conclusion that we should postpone because we’re not ready for three years or the provinces are all saying they are not ready, the elected officials in these provinces have legitimacy because they are elected. They may make wrong decisions — that’s their thing — but they deliver health care in the provinces, they assess their abilities, they know their resources and we know there is a critical shortage of mental supports for those who are suffering from mental illness across the country. It’s unfortunate, but maybe it’s a reason to be more cautious. It’s like having access to palliative care. I’m for MAID because I know there’s access to palliative care, and Canadians can choose the alternative they prefer. I’m not so sure if this alternative is as available with mental illness and mental health supports and care. These are things we should consider.

Finally, we’re not rubber-stamping, and we haven’t been doing so over the last five years. We amended 30% of the bills that came through here, and of the bills we did not amend, half were budget bills we could not amend. We have a good batting average so far. Even recently, the bill that Senator Moodie herself proposed was amended, despite her reluctance, by Senator Cormier. We are doing our work.

But here, there is an urgent call to act, and it must be done by March 17. Quite frankly, the more I hear about the proposal, the less inclined I am to support it. Let’s do the job we do properly. Let’s study the bill. The ministers will both appear. A political choice was made by elected officials across the country. The ministers will come to explain. At the leaders’ meeting, I was representing my group that night because she was in snow over her head, and we agreed that the ministers should come this week, not in two weeks from now, because we wanted people to ask questions and have time to listen to their answers and to think about it.

The time has come now, colleagues, to listen to these ministers. A political decision has been made. Let’s listen to them and challenge them on the fact that some of the findings are maybe wrong. Let’s hear from them this week.

Some Hon. Senators: Hear, hear.

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