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

By: The Hon. Pierre Dalphond

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Hon. Pierre J. Dalphond: Honourable senators, as we close our third reading debate on Bill C-7, which expands the constitutionally guaranteed access to medical assistance in dying, I will address some concerns that were raised throughout our debates.

First, I would like to acknowledge the two Senate amendments that directly address concerns about the exclusion of mental illness. Those are Senator Kutcher’s amendment to remove the mental illness exclusion after a sunset period of 18 months, and my own amendment to clarify the meaning of “mental illness,” which will hold during the sunset period.

Senator Kutcher’s amendment addresses the discriminatory treatment of a blanket exclusion of all individuals with mental illness as the sole underlying condition for requesting MAID. It affords the government, provinces and the medical profession sufficient time to implement safeguard measures and processes needed to allow for safe individualized assessment of requests based on mental illness alone, as required by the Supreme Court’s judgments in Carter and Ontario (Attorney General) v. G.

My amendment clarified that the exclusion regarding mental illness, however long it remains in force, should not include neurocognitive disorders such as Alzheimer’s disease, Parkinson’s, Huntington’s and other forms of dementia. Otherwise, Bill C-7 would actually restrict access to MAID compared to the current regime, a result that would be a step backward, totally unacceptable and unconstitutional. It ensures that individuals with neurocognitive disorders who are able to consent and meet the stringent eligibility criteria, under track 1 or track 2, do not see their access to MAID restricted, an outcome that would be completely unacceptable and, again, unconstitutional.

These amendments are demonstrative of the contribution of sober second thought in this chamber. They are supported by the evidence heard at the Legal and Constitutional Affairs Committee, which greatly benefited from over 30 testimonies and countless written submissions on the matter of mental illness. Both amendments came after due consideration of the evidence available, and neither would have been necessary had Bill C-7 not included a blanket exclusion of mental illness.

I am hopeful the members of the other place will reach the same conclusion after considering the ample evidence available.

Contrary to what some people have said or written, it is not easy for people whose natural death is not imminent to access MAID, and it would be completely impossible for a person who is depressed to receive MAID the same day they requested it. As Senator Petitclerc pointed out, a person who wants to receive medical assistance in dying must first sign a form to request MAID, triggering an assessment process in which two medical assessors must unanimously find that the person meets specific criteria. First, the person must have a serious and incurable illness, disease or disability. Second, the person must be in an advanced state of irreversible decline in capability. Third, the person must be experiencing enduring physical or physiological suffering. Fourth, their suffering must be intolerable and impossible to relieve under conditions that they consider acceptable. Fifth, at least 90 days must pass between the request for MAID and the administration of MAID.

That said, it is clear that we must continue to gather data on MAID, and deepen our understanding of how and whether it is being accessed by Canadians from all regions and of all backgrounds. Senator Jaffer’s amendment on the collection of race-based data will certainly contribute to these discussions, and I thank her for bringing it forward.

Senator Tannas’s amendment offers a simple yet effective solution for this chamber and the other place to finally conduct a comprehensive review of MAID since its enactment in 2016. The joint Senate and House of Commons committee will also give us the opportunity to examine more closely what kind of legal framework should apply to advance requests, the need for which was well argued by Senators Wallin and Boisvenu, and other areas for expansion and concern, as well as areas of concern and ways to mitigate them.

Our discussion on MAID will undoubtedly continue in the years to come. As one witness, Professor Daniel Weinstock from McGill University Faculty of Law, speaking as an individual, put it:

. . . the debate over the right way in which to institutionalize MAID in a set of laws will be a kind of political-juridical ping-pong game for years to come . . . .

While we continue our thought process and fine-tuning of the framework, it does not mean that we must refrain from making incremental changes supported by the evidence, like those proposed by the government in Bill C-7 and our amendments on mental illness.

Last, I would like to take a few minutes to address the argument that Canada will provide the most liberal access to MAID in the world by removing the “foreseeable death” requirement, and that the bill is against the UN Convention on the Rights of Persons with Disabilities. As you know, Belgium, the Netherlands and Luxembourg have allowed MAID outside of the end-of-life context for many years now. Those three countries have ratified the Convention on the Rights of Persons with Disabilities — Belgium in 2009, Luxembourg in 2011 and the Netherlands in 2016.

At committee, in an answer to a question by my colleague Senator Harder about whether the special rapporteur Gerard Quinn, or his office, had looked into the effect of those countries’ legislation on people with disabilities, Mr. Quinn said:

As I said at the outset, we are looking at international trends. The legislation pending before your Parliament, similar legislation is pending before three or four parliaments around the world at the moment. We’re actually gathering intelligence on that legislation to find out where it’s at. We have not yet made a comparative study of how the legislation in the Benelux countries is working, but we will certainly look into that and come back. . . .

I’m just three months in post. We’re putting our work program together, and that’s obviously going to form part of the work program.

Mr. Quinn also confirmed that none of his predecessors inquired into this issue, even though MAID has been provided in these three countries for almost 20 years in some instances, as well as in Switzerland, another party to the UN Convention.

In addition, two other countries that ratified the convention, Portugal and Spain, are in the legislative process of allowing MAID outside the end-of-life context, including for disabled people. MPs in Spain have adopted the relevant piece of legislation in December 2020 by a vote of 198 to 138, with two abstentions. The bill is now before the Spanish Senate. In Portugal, the Assembly of the Republic adopted a MAID bill in January 2021 by a vote of 136 to 78 with 4 abstentions, and the bill now awaits presidential confirmation.

We can also expect France, another country that is a party to the convention, to follow their lead soon. Just recently, at the beginning of February 2021, Jean-Louis Touraine, a member of the National Assembly of France, introduced a bill on dying with dignity, which seeks to authorize active medical assistance in dying, with the support of a majority of members of his party, La République en marche or LREM. Earlier this month, the Keeper of the Seals, as the French justice minister is known, said on television that he believes that France is ready for active medical assistance in dying and that he is personally in favour of it.

In 2016, France legalized “deep and continuous sedation until death” for people at the end of life, a measure that is now considered insufficient in the array of options sought by French citizens who want to die with dignity.

I offer this context to highlight that the legislation before us today is not as much an anomaly as some are making it out to be. Given the number of our allies who are party to the convention and who have or are moving in the same direction, I wonder if it is not hasty to conclude an egregious violation of the convention. With the utmost respect for the UN Special Rapporteur’s statement of his grave concerns, I’m not convinced we should undo all the work this chamber has done since 2016.

Thus, in conclusion, I will support this bill for many reasons. First, to remove the second track and to limit access to MAID to those whose death is reasonably foreseeable will negate a proposal which is supported by 71% of Canadians and was endorsed by 213 MPs from all political parties in the House of Commons.

Second, the second track enforces a constitutionally protected right to autonomy and dignity recognized by the Quebec Court in Truchon and by the Alberta Court of Appeal in E.F..

Finally, no need to repeat that the reasonably foreseeable death criterion was rejected by the Joint Committee on Physician-Assisted dying in 2016, and it was also rejected by this chamber in June 2016 when former Senator Joyal moved to remove it from Bill C-14.

In conclusion, I invite you to give your support to Bill C-7, which provides access to MAID for those whose death is not foreseeable but, under stringent conditions, designed to protect those who may be considered vulnerable. Thank you. Meegwetch.

The Hon. the Speaker pro tempore: Senator Pate, do you have a question for Senator Dalphond?

Senator Pate: If he would take a question, yes.

The Hon. the Speaker pro tempore: Senator Dalphond, would you take a question from Senator Pate?

Senator Dalphond: Of course.

Senator Pate: Senator Dalphond, for the countries you looked at in terms of the comparison, are you aware of what percentage of their GDP they spend on supportive services versus, for instance, Canada?

Senator Dalphond: I thank Senator Pate for that excellent question, which also came up at the Legal and Constitutional Affairs Committee. I’ll just give the same answer. I don’t know any more than the special rapporteur and his staff, who worked on this issue, including the rapporteurs on poverty, persons with disabilities and others.

They said they had not looked closely at their spending or performed a comparative analysis.

That’s the answer we were given. There hasn’t been a study on this. I’m looking forward to the rapporteur and his office giving us some numbers for the percentage of GDP that all countries are spending on the fight against poverty. Thank you.

Senator Pate: Would you take another question, Senator Dalphond?

Senator Dalphond: Yes, of course.

Senator Pate: Would you agree that the review that was proposed by our Senate colleagues should include that review? It may not surprise you that OECD countries have been looking at this and find that Canada lags significantly behind other countries. Therefore, would you also agree that this would be an important facet for us to examine as part of the review?

Senator Dalphond: There’s no doubt that more can be done in terms of medical assistance and supportive care. Just last week, an individual who kept putting the pressure on finally got support from the Government of Quebec to live in a residence, not a long-term care home. The situation should keep getting better, but any improvement must never be used as grounds for denying other people their constitutional right, for denying Ms. Gladu, Mr. Truchon or anyone else the rights they wish to exercise, the right to autonomy and dignity.

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