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 enter the last stage of our study of Bill C-7, alterations to Canada’s constitutionally required framework for medically assisted dying, I would like to address some of the context relevant to this debate, including the legal requirements and the expectations of Canadians.

But first I would like to pay tribute to the members of the Standing Senate Committee on Legal and Constitutional Affairs, who, since November 2020, held nine full days of hearings totalling 56 hours of testimony from 145 witnesses, and who have spent countless more hours reviewing more than 100 briefs. The committee heard from a wide variety of perspectives, including ministers, provincial and regulatory authorities, advocacy groups, people living with disabilities, academics, legal and medical practitioners and experts, Indigenous representatives and people with personal experience with MAID.

I also want to acknowledge the hard work of my colleagues on the steering committee: our chair, Senator Jaffer, and Senator Batters and Senator Campbell. Unfortunately, Senator Campbell had to take a step back for health reasons in December, and I look forward to his return among us in good shape.

Through the entire process, we were assisted by devoted staff in our respective offices, by a highly efficient committee clerk, Mark Palmer, and by two exceptional analysts from the Library of Parliament, Julian Walker and Michaela Keenan-Pelletier. All of them performed public service beyond the call of duty, especially during the Christmas recess. I wish to thank them for their invaluable support, availability and contributions.

On process, I would also like to congratulate all Senate leaderships on the agreed-upon framework for our upcoming debate, building on the practices developed last Parliament around the first MAID bill and the cannabis legislation. I am pleased that this debate will be structured, including in the amendment process, and that our final vote will be scheduled. This approach will afford Canadians greater access to our work.

I now turn to Bill C-7. The background of this bill is quite simple. Further to the Quebec Superior Court decision in Truchon of September 2019, the Attorney General of Canada acknowledged that the reasonably foreseeable natural death requirement to access MAID was inconsistent with the Supreme Court’s ruling in Carter. Incidentally, that conclusion was reached by the Senate as early as 2016. It is regrettable that since then, access to MAID has been denied to many Canadians with enduring and intolerable suffering.

At the Legal Committee’s November 25, 2020, meeting, Jean-Pierre Ménard, a lawyer, said about the Quebec Superior Court ruling that it:

. . . sticks very closely to the Carter decision. [Justice Baudouin] says clearly that what the Carter decision said was itself very clear and that it also applied to Mr. Truchon and Ms. Gladu. She did not see any reason to stray from it or to rule otherwise. In Carter, the intolerable suffering of patients was the court’s decision criterion.

Once Bill C-7 passes and comes into force, an error made by the government and the House of Commons in 2016 will finally be corrected and all Canadians who are suffering and meet the eligibility criteria will be allowed to use their autonomy to choose, if they so desire, a peaceful death.

By correcting this error, Parliament isn’t just respecting a right that is constitutionally protected under the Charter of Rights and Freedoms, namely the right to make one’s own choices regarding end of life, including at a time that respects one’s right to dignity. We will also be respecting the will of Canadians. According to a Canadian poll recently conducted by Ipsos, 86% of respondents say they agree with the Carter decision; that percentage goes up to 89% in Quebec. What’s more, in response to a specific question on the primary purpose of Bill C-7, to remove the reasonably foreseeable death criterion, 71% of respondents indicated their support in favour of that initiative.

That said, removing this requirement cannot hide the fact that there are two different realities. There are individuals who are experiencing intolerable suffering and whose death is reasonably foreseeable, and then there are individuals who are experiencing intolerable and irremediable suffering but who may still live for several years.

The government cannot deny that these two realities exist, so it chose to adopt two sets of criteria to be eligible for medical assistance in dying. Some witnesses would have preferred just one set of safeguards and eligibility requirements that would apply to all applicants. Nevertheless, I believe that it is reasonable for the government to recognize these two realities, and this approach has the support of the vast majority of parties in the House of Commons and of members of Parliament. In the coming days, some senators will propose amendments to the safeguards for each of these situations. Some will say the safeguards don’t go far enough, while others will say they go too far.

I myself think that the bill strikes a balance between the autonomy and the protection of vulnerable people by adding strengthened safeguards for persons whose natural death is not reasonably foreseeable. Specifically, the practitioner is required to discuss with the patient all available services to relieve their suffering, including counselling services, mental health and disability support services, and community services.

Before the committee, Minister Lametti explained the purpose of the second track:

As part of the development of Bill C-7, the Minister of Health . . . and I met with organizations and individuals speaking on behalf of persons with disabilities at round table meetings, held across the country in January and February 2020.

One of these round tables was focused precisely on disability rights and mostly made up of national and regional disability rights organizations. This legislation reflects concerns raised at these consultations, with the inclusion of a two-track system with greater safeguards for those whose death is not reasonably foreseeable.

That being said, I acknowledge that we as a society still need to devote more resources to address the needs of people with disabilities, to provide access to palliative care in remote areas, to do more research on various illnesses and their treatments, as well as to have further research on social determinants of health. For example, we need to better understand the social factors in play when individuals make important decisions about their health and life, including about any kind of serious treatments or interventions. For example, what makes a person choose continuous palliative sedation or MAID?

But unless we revert to the old paternalistic views that have long guided medical practice, we have to be firm in protecting the right of patients to be fully informed and to decide independently what is best for them. The whole medical practice rests now on the concepts of informed consent and patient autonomy. The Canadian Charter of Rights and Freedoms protects that sphere of autonomy. Deficiencies in research data or gaps in health programs, services and structures in place are not a reason to deny or restrict the sphere of autonomy.

The very real concerns of insufficient funding, racism and bias in the health care system should not override the constitutional right of those with enduring and intolerable suffering to access MAID if that is what they truly want. Valid concerns about some other equally important rights cannot justify the negation of other rights; in other words, imperfections do not justify continued suffering.

Nicole Gladu made it clear that what she wanted was to be able to end her life at the time of her choosing:

. . . efficiently and without suffering, in the company of my wonderful friends and with a glass of pink champagne in one hand and a canape in the other, as I admire the view of the sun setting over the river from my living room window one last time.

Let’s not deny Ms. Gladu and others in similar circumstances the possibility of ending their suffering as peacefully as possible in the company of their loved ones. Let’s not deny their friends and family the possibility of fully participating in the end of life of someone they care about and saying goodbye, as Marilyn Gretzky’s family was able to do.

In my view, Bill C-7 has struck a reasonable balance by removing the reasonably foreseeable death criterion and strengthening the applicable safeguards for the second track. This approach acknowledges diverse perspectives in the disability community and at no time does it encourage people with disabilities to choose MAID or endorse any such ideas. It is important to remember that access to MAID is based on informed consent by the requester and by nobody else.

That said, I agree with many senators that Bill C-7 could be improved by us. As you know, I have expressed serious concerns about the proposed exclusion of individuals with mental illness as a sole underlying condition. One of these concerns is about the lack of a definition of what is considered mental illness for the purpose of access to MAID. Tomorrow, I will have the honour to present an amendment to the bill to clarify that the exclusion regarding mental illness should not include neurocognitive disorders such as Alzheimer’s disease, Parkinson’s disease, Huntington’s disease and 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.

Another concern I have is about the exclusion of mental illness altogether. As pointed out by many psychiatrists and other medical practitioners, this amounts to a further stigmatization of those suffering from mental illness. Furthermore, as stated by many legal experts, this broad class exclusion is contrary to the individualized assessment approach advanced in Carter, Truchon and reiterated more recently by the Supreme Court of Canada in Ontario (Attorney General) v. G. However, I’m mindful that many witnesses said that the elaboration of the required guidelines and standards for patients with mental disorders will take some time.

In this context, the adoption of a sunset clause would be, in my opinion, a reasonable way to address the interim period required for the provinces and the medical profession to establish the appropriate guidelines and standards for responsible and uniform access to MAID where the sole cause of unbearable suffering is mental illness.

In conclusion, I look forward to the debate in the coming days as we work to achieve the best public policy for Canadians through our contribution of sober second thought. Meegwetch, thank you.

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