Third reading of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying)—Amendment by Senator Plett

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, I will not speak in favour of this amendment, and I will explain why. Senators Gold and Mégie explained the principles at stake and the balance to be struck between the freedom of conscience and the right of patients to receive medical assistance in dying, so I will not cover that.

I will do the exercise I was called to do yesterday in terms of the analysis of a proposed new criminal offence, which reads:

Every person who compels another person to provide or facilitate the provision of medical assistance in dying is guilty of an offence punishable on summary conviction.

The idea here is to provide a fix or a solution for two problems identified by Senator Plett in his speech. The first is about a hospice in B.C., a non-profit society operating on provincial public land and receiving from the provincial government, through the regional health authority, $1.5 million per year in funding.

Further to the adoption of MAID, the regional health authority asked the Delta Hospice Society to provide on-site MAID if required by a patient. Failing that, it would be deprived of public financing. In other words, the regional health authority wanted to guarantee access to MAID.

The second scenario to which Senator Plett referred is the obligation imposed upon a physician who objects to MAID to provide a referral to a colleague or someone else who could provide or assist in providing MAID.

He provides a solution to these two problems, saying that the nature of that answer can be found in criminal law: “Every person who compels another person . . . .” He says that the Delta Hospice Society is compelled because if they do not provide it, they won’t get the financing. The answer is, unfortunately, off the mark.

Person is not defined in the Criminal Code. It is defined in the Interpretation Act, and the definition includes an individual or a body, but as stated in the Interpretation Act, section 16, it does not apply to the Crown. A Criminal Code provision does not apply to the Crown unless the Crown is specifically mentioned. And this principle, of course, has been affirmed over the years — for more than 200 years — but I can only quote briefly from the Supreme Court in Eldorado Nuclear, “Section 16 of the Interpretation Act makes it clear the Crown is immune unless expressly bound.” Therefore, this will not apply to the B.C. government. This will not apply to the regional authority in B.C., and this will not apply to the Delta case where the regional authority was providing financing. To the first problem Senator Plett raised, this is not a solution.

The second problem is in regard to obligations to make a second reference to a doctor. If we look at the situation in Quebec — and Senator Mégie referred to it — it’s section 31 of the loi concernant les soins de fin de vie that provides that if a doctor receives a request for MAID and doesn’t want to be engaged in that process, he has an obligation to transfer the request for MAID to another doctor or to the director of the hospital where he’s practising or to the director of the regional health authority.

This is the law, and it cannot be changed by the Criminal Code because the provincial Crown — Quebec in that case — has made it through the law and is not covered by what Senator Plett is proposing.

In Ontario, the College of Physicians and Surgeons have adopted two policies that say those who object to MAID must provide an effective referral to another physician or professional health or an agency. They have to provide a referral. Senator Plett says this is terrible. He doesn’t want doctors to have to do that because that’s going too far.

That case was brought before the Ontario Divisional Court, a branch of the Superior Court. It was appealed to the Ontario Court of Appeal. The Ontario Court of Appeal recognized that some of the doctors had their conscience rights infringed by that but that the right of the patient, on the other hand, was also a right to be protected. Pursuant to section 1 of the Charter of Rights and Freedoms, the balancing meant physicians had to provide a referral.

What is Senator Plett suggesting to us in this exception to the principle? It says there’s an exception to the offence he wants to create. A person who provides information to a person who requests it does not facilitate the provision of MAID. Therefore, if the Ontario College of Physicians and Surgeons is ordering every doctor to answer questions that are asked by patients about MAID, this is covered by his exception. Not only will they have to make a referral, but they will also have to provide information. I think he’s missing the target. Thank you very much.


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