Third Reading; Bill C-7: An Act to amend the Criminal Code (medical assistance in dying) – Sen. Cordy

By: The Hon. Jane Cordy

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Hon. Jane Cordy: Honourable senators, I rise to speak today on debate at third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

I agree with what Senator Munson said last evening when he said it’s not always easy to talk about medical assistance in dying, and I would suggest to you that many people are uncomfortable with the whole issue of dying, and particularly MAID.

I wish to begin by thanking my colleagues for their thoughtful deliberations on this bill. Colleagues have shared very poignant personal stories and engendered much thought-provoking debate, informed by their individual experience, their conscience, and their study and consultation on this bill. Debate was focused on fundamental questions of preserving personal autonomy and on protecting life, particularly for those who are vulnerable in our society. I would like to pay particular thanks to the sponsor of the bill, Senator Petitclerc, who did an excellent job. I would also like to thank our progressive group star, champion and expert, Senator Dalphond, who patiently answered all of our questions when our caucus was discussing Bill C-7.

The Senate has a long history of thoughtful debate on both issues of death and dying, including medical assistance in dying, MAID, palliative care and the protection of vulnerable Canadians, as well as on issues of our individual and collective rights under the Canadian Charter of Rights and Freedoms. In fact, the final report Of Life and Death of the Special Senate Committee on Euthanasia and Assisted Suicide, in June 1995, grappled with these same issues. At that time, senators, like the Canadian public, were deeply divided on issues of medical assistance in dying, but senators were unanimous in the need for the protection of vulnerable Canadians, the need to increase the availability of integrated hospice palliative care to support those who are dying, and the need for the recognition of advance care directives to guide substitute decision makers in making health care decisions for a loved one who could no longer speak for themselves.

Honourable senators, that study was in 1995, over 25 years ago. That 1995 Senate report had a lasting impact in several ways. It was the first national report to bring a consistent glossary of terms, which was then used in medical ethics and health law classes. It led to several national initiatives on improving palliative care and recognizing advance care planning. It led to important supports such as the compassionate care benefit under Employment Insurance. Perhaps most importantly, it set the stage for a national debate that took place over many years. In fact, many of the required safeguards for MAID that were outlined in the 1995 report form part of the current safeguards under the Criminal Code.

In June of 2016, 21 years after that 1995 report, MAID was decriminalized through Bill C-14, An Act to Amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). The bill currently before us is primarily about removing the concept of reasonably foreseeable death as an eligibility criterion, and has been driven by the Superior Court of Quebec Truchon decision. It has evolved through a process of extensive consultation with Canadians. Honourable senators, those of us from Nova Scotia are very familiar with the Audrey Parker case.

As parliamentarians, regardless of our personal beliefs and feelings about MAID, we represent all Canadians, with many varied opinions and views on the issue. The courts have ruled that MAID is a right for Canadians, and as legislators we must adhere to this ruling and view the legislation and the issue through this lens. Our task at hand is to ensure that this bill meets the requirements laid out in the Truchon decision, respecting the rights of individuals while ensuring adequate safeguards to protect the most vulnerable among us.

As we protect those most vulnerable in our society, our challenge is to ensure that MAID is not a fallback position, nor a default decision, because individuals do not have equitable and timely access to adequate supports to address suffering. We need to ensure that poverty, homelessness, systemic racism or a lack of disability or health care supports do not lead individuals to believe that MAID is their only option.

As Dr. Neilson, President of the Canadian Psychiatric Association, explained before the Standing Legal and Constitutional Affairs Committee during the pre-study of Bill C-7 on November 23, 2020:

. . . equitable access to clinical services is an essential safeguard to ensure that people do not request MAID due to a lack of available treatments, supports or services and as an alternative to life.

Other witnesses before the Senate committee emphasized how social determinants of health, including poverty and lack of adequate housing, significantly and negatively affect adequate access to palliative care and other forms of health care, and risk leaving those most marginalized without meaningful alternatives to MAID. Herein, as parliamentarians, we have a challenge, as many of these social, economic and health supports lie within the constitutional responsibility of our provinces to administer. Yet this does not absolve us of all responsibility.

We know there is a lack of services in many parts of Canada. This lack of services is especially noticeable for persons with disabilities in many communities. The current crisis with the lack of affordable housing that is occurring in much of this country has meant even more Canadians in inadequate or unsafe housing, young people with disabilities forced to reside in long-term care homes with those who are much older, and a lack of supportive housing and community supports in Canada.

One witness before the committee, Jonathan Marchand, Chair, Coop ASSIST, Quebec cooperative for independent living, stated: “ . . . death without dignity doesn’t exist without life with dignity. In speaking to the concerns of people with disabilities, Mr. Marchand continued:

There can be no death with dignity and freedom of choice as long as we are forced to live in institutions, made to feel like burdens, while we face discrimination and systemic violence at all levels.

MAID has been a fundamental shift in our society, and like any fundamental shift it requires close study and analysis to ensure that legislative intent is appropriately implemented. This is never truer than when dealing with fundamental changes that have such permanent consequences. This debate is not just a theoretical debate of rights, but a very human debate that affects the lives of all of us — our neighbours, family, friends and our fellow Canadians.

Honourable senators, we must address the gaps in data and how the current MAID regime may adversely affect our vulnerable populations. We must better understand the scope and adequacy of services offered to those receiving MAID. For example, there are still many, including health care providers, who think that palliative care is only available and provided in the last months and weeks of life when curative treatment is no longer available. As a result, palliative care services are often sought too late, limiting the ability of those services to prevent and relieve suffering. By contrast, a palliative approach to care can help people early in their illness. It can start a diagnosis when treatments are taking place, and there still may be years left to live.

According to the First Annual Report on Medical Assistance in Dying in Canada released in July 2020, of the persons who received MAID in 2019, 82% reported receiving some level of palliative care. However, 31.4% of those receiving MAID received palliative services for less than a month, and half of them for less than two weeks. A further 16.2% did not receive palliative care services at all. Furthermore, the report notes that the data does not speak to the adequacy of the services offered. Were these individuals connected to services early enough in their illness? Services differ across Canada, with rural and remote areas often not having the same level of access to services. Wait times can vary greatly across the country. What impact did this have on the decisions of individuals to choose MAID? Were services offered in culturally appropriate ways? Have we adequately ensured that the needed supports are there to ensure that the decision for MAID is truly based on free, prior and informed consent?

Honourable senators, we need further data to ensure the provisions provide adequate protection. I am particularly struck by the need to better understand the effects of the amendment by Senator Wallin with regard to advance consent. Of course, I support advance care planning and the process of determining who will speak for me if I can no longer speak for myself. However, I believe that more work needs to be done to understand the link between advance care planning directives and advance consent for MAID, as I said in my speech on that amendment.

While I voted against Senator Wallin’s amendment, I respect the work that she continues to do on the issue of dementia. Therefore, I applaud the motion in amendment by Senator Tannas that a comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying and their application must be undertaken by a committee of both houses of Parliament within 30 days of Royal Assent. We were to have had a parliamentary review of Bill C-14, and that, unfortunately, has not occurred. The debate and discussion of MAID should not end with the passage of the bill. I hope that the other place accepts this amendment.

Regardless of whether the other place accepts Senator Tannas’s amendment or not, I believe that the Senate should initiate further study of this bill, as suggested by Senator Gold. As I referenced at the beginning of my remarks, the Senate has a long history of contributing to public policy as it relates to this issue. Having been a member of several of the committees that have studied these issues, I rose on a number of occasions to voice my strong support for the efforts of those who work to help dying Canadians live life well until the very end, whether or not they choose that end under MAID.

Honourable senators, I will be supporting Bill C-7. I will be doing so to respect the wishes of those who opt for the choice of receiving MAID under what I believe is a thorough assessment system by medical personnel that will allow for dignity in dying. Like Senator Moodie, I agree that MAID will likely be a hotly debated and contested topic for many years to come. I also believe that there will be more court challenges related to MAID in the years ahead.

Honourable senators, thank you for your many impassioned and personal stories. I listened carefully to them. In fact, I reread many of them. Everyone has shown this legislation the seriousness it deserves. Thank you.

Some Hon. Senators: Hear, hear.

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