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

By: The Hon. Peter Harder

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Hon. Peter Harder: Honourable senators, I rise to add my voice to the debate on Bill C-7.

I have and will continue to listen carefully to colleagues, and recognize that this is a deeply personal issue for many, whether because of individual experiences or profoundly held beliefs. I respect these views and do not doubt the sincerity of any senator.

Bill C-7, however, is legislation passed by the other place, requiring our review and consent before it can come into effect. It is before us as a result of the Quebec Superior Court decision overturning certain provisions of Bill C-14, based on their constitutionality. Bill C-7 is a response to the Truchon decision in Quebec. Bill C-7 is not a relitigation of Bill C-14, passed in 2016.

I agree with colleagues that the time given us has been unreasonable, and there is blame enough to go around. A global pandemic, a shift in government policies and priorities as a result, a prorogation to reset and filibustering in the other place does not help matters. But this is the hand we have been dealt, and we are perfectly able to deal with this bill and perform our constitutional duties.

First, Bill C-7, is not new government policy or priority. It is a response to a judicial decision and must be respected as such. For those of you who suggest that the government should have appealed the Quebec Superior Court decision and allow the Supreme Court to make a final ruling, a position with which I have some personal sympathy, I remind you that the joint parliamentary committee and this chamber — as Senator Carignan suggested on June 11, 2016 — pointed out the likely unconstitutionality of “a reasonable and foreseeable natural death.”

An amendment was passed in the Senate to that effect and was subsequently rejected by the other place. The Senate then acquiesced to the decision of the elected members — as it should. To suggest that the bill be shelved or defeated is, quite frankly, not the job of this chamber.

Second, Bill C-7 is not a relitigation of Bill C-14. MAID is the law of the land. The issue of constitutionality to the limit of reasonable and foreseeable natural death in the context of a MAID request has been decided. It is unconstitutional.

To deny that same request to an individual who is suffering from a prolonged and irremediable illness is now permitted in the province of Quebec. The only question before us is whether this same request may be made by Canadians suffering from a prolonged and irremediable illness in the rest of Canada.

We have heard concerns expressed by advocates for the disabled that Bill C-7 will open the door to MAID for those whose underlying reasons for their requests are due to their circumstances or lack of support, because of government failings. Lack of financial support, adequate housing or access to home care and palliative care are valid concerns for those managing life with a disability. These are also questions that constitutionally fall under the jurisdiction of the provincial governments, such as governance of the medical practice. Bill C-7 does not address any of these issues; they are out of scope.

Provinces are taking up the matter, however. A new bill dealing squarely with palliative care, the Compassionate Care Act, was passed two weeks ago with all-party support in my province of Ontario. The purpose of the legislation is to oblige the Minister of Health to develop a provincial framework designed to support improved access to palliative care provided through hospitals, home care, long-term homes and hospices. This underscores that it is a matter for provincial jurisdiction, with the federal government playing an important collaborative role. COVID may be the motivation for this provincial legislation, but it is a step forward for the disabled and those requiring assistance to live their lives to the fullest.

What Bill C-7 does is provide safeguards for those applying for MAID but whose death is not imminently foreseeable. The bigger concern for disability advocates right now should be the fact that the safeguards of a 90-day waiting period will not be in place in the province of Quebec as of December 19 should the courts not grant the government’s request for an extension to February 26, or Parliament fails to enact the bill before that date.

I am in favour of, where possible, providing as much support as needed to those who require assistance in order to live their lives. I also support the choices made by competent adults who have reached a point where the suffering they endure has become so intolerable and determined irremediable that, after much thought and prayer, they have decided to request an assessment for MAID. I would like to quote from paragraph 680 of Justice Baudouin’s decision:

The legislator’s connection between the reasonably foreseeable natural death requirement and the vulnerability of all persons with disabilities betrays, with respect, a paternalistic view of individuals as plaintiffs. Because of their disabilities, the state considers implausible . . . that these people can give a valid consent to medical assistance to die, autonomy being necessarily compromised by their vulnerability . . . .

The disability rights communities have fought long and hard for equality. Being limited physically does not preclude an individual’s entitlement to make the same choices being afforded to those who are in similar straits but whose death is more predictable. Bill C-7 is righting a paternalistic wrong as argued by the plaintiffs in Truchon, and by delaying this bill the Senate is effectively asking competent adults to suffer longer or wait until their disease brings them closer to death.

As for the exclusion of MAID access to those whose sole underlying medical condition is mental illness, I agree with comments made in the chamber by Senator Gold. Without consensus within the psychiatric community itself, it is obvious that this issue needs far more reflection and study. Unless and until experts in the field are able to reach some form of agreement, I suggest that this question be taken up during the review process.

Bill C-14 mandated a five-year review to start in June 2020. While I regret that this provision has not proceeded in the time frame mandated in law, the Minister of Justice and the Minister of Health, in testimony at committee, have stated that this review will begin quickly. From my perspective, I would be in favour of such a being review undertaken by this chamber. We have the skill set, the experience and the institutional memory now of five years to take on this difficult subject.

Regardless of future political winds or fortune, Senate members of such a review committee could continue on with their analysis and report back with results and recommendations. The information obtained by this committee would be an important tool for the government going forward in formulating policy priorities on this sensitive subject.

Bill C-7 was passed in the other place by an overwhelming majority of duly elected MPs from five parties. This is not the result of a majority Parliament whipping its 212 members in order to have a controversial bill pass with limited hearing or debate. I hope colleagues will recognize the significance of Bill C-7 arriving in the Senate during a minority House of Commons.

As a result, I will not vote in favour of amendments that would in any way alter the provisions of Bill C-7 or delay or prohibit its passage. The safeguards in the bill are necessary for those accessing MAID in Quebec, and Canadians in the rest of the country should not have their suffering prolonged because this chamber was unable to finalize legislation that was passed by an overwhelming majority of their duly elected representatives.

Bill C-7 is about respect for choice and autonomy. Justice Baudouin ruled that MAID, as written, discriminated against people with disabilities who are not near death. The bill before us corrects that error and offers the right choice to all Canadians and respect for the choices made by competent individuals who wish to die with dignity.

I have an enormous amount of respect for Sue Rodriguez, Kay Carter, Gloria Taylor, Jean Truchon and Nicole Gladu who fought courageously for their right to choose and who paved the way in allowing these same rights for all Canadians in difficult and similar circumstances. Let us honour them by deliberating, debating and passing this legislation expeditiously. It is my hope that we can send Bill C-7 to committee before we rise for the Christmas break and return to finalize deliberations immediately on our return, so that we can meet the obligation to finish this legislation in mid-February.

Some Hon. Senators: Hear, hear.

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