Bill C-14 (Historical)

An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

This enactment amends the Criminal Code to, among other things,
(a) create exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process;
(b) specify the eligibility criteria and the safeguards that must be respected before medical assistance in dying may be provided to a person;
(c) require that medical practitioners and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assist­ance in dying provide information for the purpose of permitting the monitoring of medical assistance in dying, and authorize the Minister of Health to make regulations respecting that information; and
(d) create new offences for failing to comply with the safeguards, for forging or destroying documents related to medical assistance in dying, for failing to provide the required information and for contravening the regulations.
This enactment also makes related amendments to other Acts to ensure that recourse to medical assistance in dying does not result in the loss of a pension under the Pension Act or benefits under the Canadian Forces Members and Veterans Re-establishment and Compensation Act. It amends the Corrections and Conditional Release Act to ensure that no investigation need be conducted under section 19 of that Act in the case of an inmate who receives medical assistance in dying.
This enactment provides for one or more independent reviews relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.
Lastly, this enactment provides for a parliamentary review of its provisions and of the state of palliative care in Canada to commence at the start of the fifth year following the day on which it receives royal assent.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair, and thank you, Mr. Thériault, for introducing this proposed amendment.

I understand where you're coming from, but my concerns are on a couple of different levels. But for the pandemic, there would have been a review undertaken already with respect to Bill C-14, as was required by the legislation. It's unfortunate that it wasn't able to go ahead in a timely manner, but we all know the reasons why, and I don't think anybody really takes issue with it too strenuously, at least I hope so. To the extent that this amendment is in response to that delay, I think it's unnecessary.

On another level, I think it may be a bit overzealous in the sense that if we were to apply a one year-review criterion to every piece of legislation that this committee or other committees pass, that's all we would spend our time doing—reviewing legislation that has been passed within the last 12 to 18 months, which speaks for itself as being unnecessary.

My understanding is that there's going to be a review taking place—likely as soon as early in the new year. By necessity—and I think we just heard this confirmed—that will include all aspects of this legislation, including many of the issues, if not all of the issues, that we've been talking about during the course of the last eight meetings. In addition to that, we'll be discussing and reviewing other aspects of the legislation as well, which will necessitate and involve further widespread consultation.

All of this is to say that, although I appreciate your amendment and I empathize with your motivation, in the circumstances we're currently in it's unnecessary, on the one hand, and on the other hand, it may be placing too heavy an obligation on this committee.

Thank you, Madam Chair.

[Luc Thériault, Bloc, Montcalm, QC]

I understood that mental health would not necessarily be excluded from the review under section 10 of Bill C-14.

[Joanne Klineberg]

That's an interesting question.

I think the scope of the requirement depends on the words you choose as parliamentarians. If the requirement written into the new bill is to review the bill and other related matters, I believe it will be allowed.

For example, one committee had requested that the state of palliative care be studied during the parliamentary review, even though it was not expressly set out in Bill C-14. As parliamentarians, you can make it a requirement for you to review whatever you want.

[Joanne Klineberg]

Thank you, Madam Chair.

As we at the Department of Justice understand it, the requirement in the previous Bill C-14 to conduct a parliamentary review early in the fifth year after the act comes into force still applies. The fact that we have a new bill amending sections of the Criminal Code does not change the requirement in the previous Bill C-14.

As we understand it, a single parliamentary review is required, not a review every five years. We see no reason to believe that this requirement would be precluded or affected by Bill C-7.

[Luc Thériault, Bloc, Montcalm, QC]

Madam Chair, this amendment was intended to be preventive, because, when the minister appeared before the committee, he told us that he absolutely wanted the act to be reviewed quickly so that all the sensitive aspects ignored in Bill C-7 could be studied. One of those aspects was that Bill C-7 excluded the whole issue of mental illness.

Therefore, the purpose of my amendment is to look not only at mental illness, but also at neurodegenerative diseases, which had also been dropped from the bill. When we studied these diseases, we received witnesses who were even willing to move the discussion further even more. They said that they agreed with passing Bill C-7 to amend the Criminal Code, meaning Bill C-14, but that we should then get to work quickly to deal with those issues.

There was also the whole issue of mature minors. It is the contention of the Canadian Bar Association and of Mr. Ménard that the Carter decision, the Baudouin decision, and the court go much further: they imply that mature minors, mentally ill persons and persons suffering from neurodegenerative diseases should have access to medical assistance in dying.

I was asking myself the following question, which is perhaps for the department's legal experts.

Since Bill C-7 does not provide for a review of the act, does this automatically fall under section 10 of Bill C-14, which provides for a review of the act every five years?

If the act is amended, it becomes a new act. Does the new act mean a five-year delay before the review is undertaken?

In that sense, my amendment seeks to prevent us from studying and discussing the sensitive issues ignored in Bill C-7 in four or five years, when we have reached an agreement and the minister has come to testify. This had to be done quickly, since Bill C-14 already contained a provision that should have prompted us to review the act last summer.

I would like someone to answer my questions. That is why I introduced this section. I was told that I could not table a section like that because it would be too early and we could not review Bill C-7.

Bill C-7 is not legislation in itself. It is one part of a piece of legislation called the Criminal Code. Right now, court judgments are telling legislators that they are ignoring a major part of the problem and the people involved. If we don't want to end up with legislation that will be challenged in the Supreme Court once again, or slapped with a court order, we should already be at work, discussing it ourselves, and taking responsibility.

If people with neurodegenerative diseases heard today that the act would be reviewed in four or five years because that is what section 10 says, they would certainly challenge it in the Supreme Court. However, depending on how the legal community interprets section 10, my amendment would allow the act to be reviewed and considered now, after Bill C-7 is passed.

Keep in mind that I had asked the minister if he agreed.

The minister told me that he did and that it was a matter of agreement among the House leaders. I thought that was sort of weak as an answer or an intention. That is why I am introducing this amendment today. I did not have the answers to the questions I am asking you and I did not want to take any chances.

Who will give me answers? I want answers. I don't want to just be told it's out of order.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Madam Chair.

I speak in strong support of CPC amendment 8.

I think it's important for those who are watching these proceedings to read CPC amendment 8. It simply provides that “on the day specified in the written arrangement referred to in [the] subparagraph”—namely the advanced request—“the person is reminded by the medical practitioner or nurse practitioner that they entered into that arrangement and is provided with the opportunity to demonstrate refusal to have the substance administered or resistance to its administration”.

I would be surprised if there could be any opposition to this subamendment, that someone who has made a request in advance would somehow not be provided an opportunity to withdraw that request.

Ms. Findlay, in her submissions, noted that in the Carter decision, the Supreme Court of Canada stated not once, not twice but on three occasions that to qualify for medical assistance in dying they must clearly consent. The defining paragraph of the Carter decision reads as follows:

...for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

It says, “clearly consents”. What does “clearly consent” mean? It means that it must be affirmative. It must be positive.

I would submit that, constitutionally speaking, the provision for any form of advance consent is questionable. It falls well outside the scope of the Carter decision and this amendment simply provides for there to be at least some opportunity for the patient to demonstrate that they consent, to the degree that they have that ability.

This is all the more important, given that we speak about “reasonably foreseeable”. This should not be confused with “end of life”, at least as far as how reasonably foreseeable has been interpreted since Bill C-14 was passed.

It's true that in the province of Quebec reasonably foreseeable had tended to be interpreted in an end-of-life context, but that is not the case in other provinces. Part of the reason reasonably foreseeable had been interpreted in an end-of-life context in the province of Quebec was the language in Bill 52 passed by the National Assembly of Quebec prior to the passage of Bill C-14.

Given that reasonably foreseeable can and has been interpreted to sometimes mean that someone could have not weeks to live but months, and maybe even more than a year, illustrates the fact that now that we have legislation that provides that someone who could have months, or potentially a year or even longer than a year, in terms of at least how medical assistance in dying and how reasonably foreseeable has been interpreted in practice, it is absolutely essential that such a person at least be reminded that they made the request at a date they selected that, again, could have been a year away. I would make note of that fact.

I would also note that we heard a lot of evidence at this committee about how persons who request medical assistance in dying in some instances end up changing their minds. I would note in that regard that the federal government's own recently released first annual report on medical assistance in dying in Canada revealed that out of 7,336 written requests for MAID that were reported in 2019, 263 were withdrawn by the patient, predominantly because they changed their mind. Of these 263 requests, 20.2% took place immediately before the MAID procedure was to be performed.

Frankly, if that doesn't demonstrate the necessity of requiring that the patient be reminded of their request and have the full opportunity to withdraw their consent, then I don't know what does.

I would further add, just in terms of why this very limited and, I would submit, inadequate safeguard.... It is nonetheless an improvement on what this bill provides for, which is no safeguards, or completely inadequate safeguards, when it comes to this very problematic area of advance requests. I would cite the expert panel working group of the Council of Canadian Academies. I've cited before the 2018 expert panel working group of the Council of Canadian Academies, and I'll cite it here this evening. They had a report, a comprehensive report, identifying a number of concerns in allowing patients to make an advance request. The expert panel working group noted a lack of consensus. The expert panel working group noted that there was a lack of consensus, more particularly amongst experts, on “which situations, if any, are suitable for allowing (advance requests) for MAiD”.

One of the things that were noted by the expert panel is that there is simply a lack of data to fully understand the impacts of how this practice works.

In that regard, I should note that, although there are many on this committee who to talk about medical assistance in dying as if it is just a leading practice that is widely accepted everywhere, Canada is one of the few jurisdictions in the world that has any form of medical assistance in dying. Indeed, just 2% of the population in the western world lives in a jurisdiction with any type of medical assistance in dying. Of the very few jurisdictions that offer medical assistance in dying, just four jurisdictions provide for advance requests.

We really are heading into uncharted territory. Even in the Netherlands it is controversial and has not been truly settled.

When you think about the Supreme Court of Canada decision, the Carter decision, which is the Supreme Court decision that guides us, it sets out the parameters under which we, as parliamentarians, must legislate. The Supreme Court of Canada recognized expressly in the decision that vulnerable persons could be put at risk as a result of medical assistance in dying, which is why the Supreme Court went out of its way on those three occasions in its decision to say that a patient who requests medical assistance in dying “clearly consents”.

What's more, the Supreme Court determined that only with a carefully designed and monitored system of safeguards could there be assurance that those inherent risks would be sufficiently minimized. When the Supreme Court of Canada has all but said that advance requests fall outside the scope of what the Supreme Court envisioned in terms of laying out the parameters to which we, as a Parliament, responded by way of Bill C-14, surely simply putting it to someone, reminding them of their request, is the least we could be doing as we head down this very uncharted path, as we strip away safeguards that are, I believe, key, and that witnesses before our committee have said are key.

One of the things we heard was the tremendous amount of concern from the disabilities rights community, concern from all the way up to the UN special rapporteur.

We have a responsibility, a duty, to ensure that when we pass legislation in this area, we do absolutely everything necessary and appropriate to ensure that vulnerable persons are not unduly coerced, that there is true and meaningful consent, not only at the time the request is made but also at the time the request is carried out.

When we have a regime, however limited, for advance requests, that assurance of consent is simply not there. It's eviscerated. This would at least provide some level of protection, albeit very limited, to ensure that this patient clearly and truly is consenting to a procedure that is permanent and irreversible.

Looking specifically at the circumstances faced by vulnerable persons, the report of the Council of Canadian Academies noted that many Canadians face barriers to health care access. It wasn't just that panel. We heard that over and over again from the very limited time we had to hear from witnesses during the study of this radical piece of legislation that fundamentally changes the medical assistance in dying regime in Canada.

The report noted that, when it comes to barriers to access health care, particularly long-term care, when we speak of palliative care, persons who are marginalized and don't have community supports, family supports or social supports are disproportionately affected.

The expert panel working group of 2018 noted that:

People with a prognosis that includes future loss of capacity anticipate vulnerability due to factors over which they do not have direct control, including societal stigma, caregiver stress, and availability of adequate home and residential care. These factors could influence deliberations about MAID and ARs for MAID.

It's important to read that excerpt from the expert panel in some context to this bill. As the expert panel notes, marginalized persons are at greater risk than others. They are making such a request because they don't see an alternative. They don't have care supports, so they see it as simply either continuing to endure suffering or making a request to end their lives, which should concern all of us because that is not a meaningful and true choice.

When you take those concerns affecting vulnerable persons and you put it in context with the rest of this bill, in circumstances where death is reasonably foreseeable, you have a bill that takes away any sort of reflection period, and a bill that takes away the requirement that there be two witnesses.

You have a bill that takes away the safeguard that there be two independent witnesses and provides that a witness could be someone who is a medical professional who is attending to the care of that patient. That creates issues around implicit coercion.

I want to be very clear that I don't think there are very many medical professionals—if there are any, it would be a very small minority—who would ever want to coerce a patient. That's why I say implicit coercion or unintended coercion due to a power imbalance. Then we received here before this committee some very disturbing testimony where there was in fact real coercion. Mr. Foley came here and gave very compelling evidence about what happened to him.

Taking all of that into account, with the removal of safeguards that were otherwise there to protect marginalized persons particularly, and then you open the door to making an advance request, at the very least—

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Thank you very much, Madam Chair.

First of all, it's a pleasure to join you here at the justice committee. I have been following the debates in the House on this bill, as well as here at committee from a distance. I appreciate the opportunity to join the conversation.

I salute the work of all the members on this committee because having heard some of the testimony from people like Mr. Foley and others, it is very powerful testimony. I know not every member has been in a position, maybe because of their party, where they've been able to let on to have been moved by that testimony, but it can't help but have moved all of us to some extent as we see it. I just want to recognize, not the toll in the usual sense maybe but the emotional toll that these conversations are taking on all of us.

I was part of the debate, in a much greater sense, the first time this bill went through. I proposed a number of amendments myself at the justice committee.

My grandfather who was in a home passed away around the same time that this debate was going through the House, so all of us as well, as we contextualize what's happening, I know we are thinking about the things that may be happening or have happened in our own lives. That's particularly poignant, given all those who are suffering as a result of the isolation associated with the public health measures that need to be in place right now.

I recall specifically four years ago when this was being discussed, the importance of the question of advance consent. This amendment speaks to maybe trying to find a middle ground on the question of advance consent. The arguments of those in favour of advance consent—and these arguments were made at the time in the House—said that a person who perceives what their future would look like under certain circumstances and does not want that future, but also if that future takes place in a context where they're cognitively not able to rise to that legal standard of decision-making, there is some sense in which, if they're able to make the decision in advance, they should be able to.

That's the argument behind it, that somebody who experiences cognitive decline, as well as an increase in the pain they're feeling, shouldn't be prevented from making a decision that they would want to make if they were able to make that decision. In the absence of being able to have that decision take place in the moment, the idea of advance consent is that we would, in a sense, substitute the decision-making in advance. That is the logic, the ideal that is being aspired to.

Although the government decided not to proceed at the time, I think they were quite persuaded by some of the arguments made around the Audrey Parker case. This case was used to make the argument that if a person is not able to consent in advance about some future point, then they will make the choice to die before they would like to die.

What's striking about that case to me is that the law as it was written, Bill C-14, is supposed to only apply in a case where a person is in that moment experiencing serious and irremediable suffering. I always had a hard time in my mind squaring the circle of how it is that a person says, yes, they were experiencing serious and irremediable suffering in the moment and also wanted to be able to choose the moment to die, but they wanted it to be at such and such a point in the future, and not at this point.

I'm not taking away from the sincerity of a person who makes that decision in that moment. I'm just saying it was a hard thing for me to understand, but this was the direction of the argument.

On the other hand, those who were concerned about advance consent.... I was one of them. I made a few different arguments and I think those arguments still apply in the context of this amendment.

First of all, a person who makes a decision in the moment—who actions consent in the moment—is the only kind of consent we accept in law. I cannot consent in a way that binds my future self to some action. In the spirit of liberty and in the spirit of autonomy, we do see future selves as being distinct from present selves. There is a sense in which I am the same person I was five years ago, but there's also a sense in which I am a different person from the person I was five years ago. The person I was five years ago—let's say at the time the bill was first being debated—might have different thoughts about the issue, might have made different decisions and might have engaged the parliamentary process in a different way, and so forth.

The difference in the self I am now and the self I was then is that I have learned new things. I have also adapted to new circumstances. Things that I thought would be easy maybe turned out more difficult. Things that I thought would be difficult maybe turned out easier than I thought. The decisions I make today in the moment respond to the circumstances that I find myself in and the evolution or the changes that I may have gone through in between that point in the past and the point now.

We can all accept that as a general principle in the course of our lives, which is why we generally say in many different contexts that consent is consent in the moment. It's when you say yes to something in the moment. If you say yes to something and then a few minutes later you say, no, you don't actually want to proceed, then the present decision to say no overrules the previous yes. People change their minds. They absorb new information. They feel differently and they feel in ways that they didn't expect they would feel under certain circumstances.

What is true as a general principle is true in a particular way for those who have experienced some dramatic change in their life, like the onset of a disease or some kind of dramatic change in their health status. People don't really know how their life would be different if something that has been a big part of their life or something that they have taken for granted suddenly ceases to be there.

There's a lot of data around this. Part of what interested me about this whole question of advance consent versus present consent is that I did my master's dissertation on the idea that you could measure happiness. It is a really interesting field and important for how we benchmark our social goals and so forth.

One of the things about the happiness data is that people adapt to dramatically new circumstances in ways that they don't expect. That adaptation varies dramatically across different kinds of circumstances. A person might expect that if they were to get into an accident and have a disability and a change in their function, that person might, before that happened, expect that it would have a much greater impact on their quality of life. That's often the case, actually, for physical disability. At least, that is what the data suggests, that what they might expect as the loss of well-being that they would receive as a result of experiencing a physical disability is actually much less than the actual loss of well-being.

I'm certainly not an athlete, but suppose I was. I might think that if such and such a thing happened to me I wouldn't be able to do all these things that I liked doing and therefore my life would be so dramatically different it would be hardly bearable. Then at that future point, having been through a process of adaptation, having taken on new interests and having developed new hobbies, I may find myself thinking that, actually, I wish that accident or whatever it was hadn't happened to me, but my ability to adapt to the circumstances that I've been through is much greater than I thought it would be.

That's not the case in every case, and there is wide variation in terms of the way different things impact different people.

The point is that it's very hard to predict. If you ask me to make an advance directive, if I were to get this illness, if I were to have this particular kind of loss of functioning, and if I were to experience this change in my life, at what point and under what circumstances would I want medical assistance in dying? That current self projecting what the desires would be of that future self would be so imprecise to what my actual experiences were in the moment when I actually had those changes take place.

This is the core problem, at least with the idea of an advance directive. At the time, we were talking about this four years ago. There was advocacy for the idea of an advance directive, which is where a person could say—

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I'm happy to move CPC-8.

CPC-8 requires that we inform a patient of advance consent before proceeding with MAID. This amendment would require in the case of advance consent that a health care provider inform a patient of their advance consent on the day that assisted dying is to take place and, if possible, give them an opportunity to respond and indicate whether they would wish to proceed or not. This amendment is supported by important stakeholders, including the Canadian Society of Palliative Care Physicians.

The concept of advance consent is something that has been debated but was included in Bill C-7, even though it was not required in a response to the Truchon decision. The position that I feel would have been appropriate was to have appealed this decision. Instead, the government took the opportunity to respond in Bill C-7 to the decision. It did not just respond to the decision, but went beyond responding to the decision. The decision of the Superior Court of Québec said that it was unconstitutional and violated the person's rights that death had to be reasonably foreseeable.

We don't know what the Court of Appeal would have done with that decision. We don't know what the Supreme Court of Canada would have done with that decision. The decision could very well have been overturned. It could have been found that there was no violation of rights. We don't know that because the decision wasn't appealed and the government did not defend its own legislation.

The government didn't just respond to the court decision. A number of the amendments that we've put forward, including this one, relate to the removal of safeguards that were included in Bill C-14, but there are also new concepts included in Bill C-7, which include a waiver of final consent. It means that if a person has lost the ability to consent, the person can waive that and still receive MAID. What this amendment would do is to take the steps necessary to see if contemporaneous consent can be given before MAID is provided.

I've mentioned the Canadian Society for Palliative Care Physicians. They've had a number of recommendations. I spoke about a couple of their recommendations in some of our other amendments. I want to draw your attention to their third recommendation, which is “to maintain [the] requirement for capacity to consent at the time of provision of MAiD”. They say:

A person should be able to change their decision up until the time of the procedure. The proposed changes in Bill C-7...remove that opportunity from a person who loses capacity after previous consent. Furthermore, the determination of whether or not a person does wish to withdraw their request after losing capacity to consent by way of words, sounds or gestures, is problematic in its potential subjectivity and may put clinicians in a precarious situation by having to interpret these responses. MAiD may be requested simply because the level of care required by the patient who has lost capacity exceeds what is currently being provided.

We've already discussed the issue of palliative care, but this is in the context of their recommendation, which is to not include the waiver of the final consent. That's not what this amendment is about, but this amendment speaks to the concern that's being raised by palliative care physicians. It is that we should, if possible, inform the patient who has given advance consent before proceeding. We should make an endeavour to get that response of whether to proceed or not proceed before taking the steps that would end this person's life.

I appreciate this recommendation. It's a recommendation that the palliative care physicians support. It's a safeguard amendment that would provide.... I don't think we can ever take lightly the gravity of the type of legislation we're dealing with, and this does involve a person's life and death decisions. Every possible safeguard should be put in place.

That is why I'm moving CPC-8. The Canadian Society of Palliative Care Physicians feels that this type of amendment is a responsible one. I ask that committee members to consider this amendment and to consider the source of the support for this amendment: physicians who are dealing with people in end-of-life situations.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I'd like to move CPC-7. To be clear, I am moving it and I am speaking only for myself when I speak with regard to CPC-7.

I'm sure that we've all read the legislation. In Bill C-7—and a number of people have consulted with some individuals on it—there doesn't seem to be clarity around when the 90-day reflection period begins. It's incumbent upon us to have certainty in our legislation. We've chosen vagueness when it comes to reasonable foreseeability. There are some terms that are certain, such as the 90-day reflection period. We're saying that it's 90 days. We just defeated an amendment that would have made it 120 days.

CPC-7 amends Bill C-7 to read:

ensure that there are at least 90 clear days between the day on which the request under paragraph (b) was signed by or on behalf of the person and the day on which medical assistance in dying is provided to them or — if the assessments have been completed and they and the medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the loss of the person’s capacity to provide consent to receive medical assistance in dying is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

That last part is relevant to our previous debate in that the 90-day period can be shortened. However, what's not clear in Bill C-7 is when the 90-day period starts. This particular amendment provides that certainty.

This is important because, as has been mentioned, we're dealing with decisions around life and death. We're dealing with something where doctors, nurses, health care providers, family members and individuals who may be considering MAID need to have certainty around the process.

Part of the certainty around the process involves safeguards. The government, in Bill C-14, included a number of safeguards. Some of those safeguards involved the period of reflection. The period of reflection enables an individual, upon requesting MAID.... It gives the person time to change his or her mind, to consider further circumstances, to have a period of reflection. That period in Bill C-14 was 10 days. That was seen as appropriate.

We have to remember that one of the requirements in Bill C-14 was that death had to be reasonably foreseeable. Following the Truchon decision—this was a Quebec Superior Court decision—we argued that the government at the time should appeal the decision in order to provide more certainty around the law. Normally, especially with a new law such as Bill C-14, it's incumbent upon the Attorney General and the government to defend its legislation. We argued that.... There I am, using the word “we” again, Madam Chair. I'll say that I argued. I argued that we should have appealed that decision, that this would have been the right thing to do. Instead, the government brought forward Bill C-7.

Bill C-7 includes a 90-day reflection period for individuals who are seeking MAID where death is not reasonably foreseeable. What Bill C-7 doesn't include is explicit and certain terminology that can be universally understood about when that 90 days starts. It's not clear whether it's when a person has been formally assessed for eligibility for MAID or when they're informed that they are eligible for MAID. It's quite unclear.

We want to provide that certainty, and we want to provide that it is at a moment in time when the person—and this should be the start point—has specifically requested MAID. That is when that point should begin. That point should only end, of course, after the full 90 days is complete. We had argued that 120 days would be more appropriate and that was defeated, so it's when the 90 days is complete.

I'm happy to move CPC-7, and I'm happy to answer any questions that committee members may have on this amendment.

Thank you, Madam Chair.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Madam Chair.

It is perhaps appropriate to recall the context of this bill. Many things are being said, and at a certain point, they completely confuse the basic issue.

Suicide in Canada is decriminalized. Assisted suicide is still a criminal offence, barring certain exceptions. We did not decide that this evening. Rather, the courts told us that the legislation violated the right to life. There was Bill C-14 and, before that, the Carter decision, which led to Bill C-14. Mr. Lewis says that we are encouraging suicidal people to commit suicide. However, it is quite the opposite.

I cannot fathom how the justices in the Carter decision, who told lawmakers to go back and do their homework, would react. How would Justice Baudouin react to the comments I have just heard, which are an all-out assault on the courts' interpretation that led them to tell lawmakers that the current legislation violates the right to life of people with irremediable conditions and intolerable pain and suffering? The courts are of the opinion that people are currently being compelled to act before they would want to do so, meaning when they have passed the point of what is tolerable for them. According to the current legislation, they are being compelled to commit suicide; that's what the Superior Court said. They are being compelled to end their lives prematurely.

I really want us to try to justify a rather straightforward amendment that we could have voted on pretty quickly, but here we are. We need to respond to the court's ruling with Bill C-7. We must return to the fundamental issue. The court told us not to violate the right to life of people with irremediable conditions experiencing intolerable suffering. They want to live until they have passed the point of what is tolerable for them.

That does not happen after an accident. Someone who has an accident tomorrow morning and becomes quadriplegic might become suicidal and would receive care for that state. Over the course of their care—because we do provide care for people—they could one day decide to request MAID, and that request will then be assessed according to the safeguards set out here.

Out of respect for the work we must do, let's not confuse the basic issue. I know that we are presenting all the arguments we can, but the purpose is not at all to encourage any suicidal state. Let me repeat that suicidal states are reversible. We are talking about access to medical assistance in dying and a person's ability to make that decision, which is not made lightly. People at that stage will have exhausted all other options over the course of their care. Paragraph 241.2(3.1)(g) ensures that people will recognize the full range of care available to them and all options they have.

I'm ready to vote.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair. I was just going to move it, but I'll speak to it then as well, per your invitation.

What CPC-6 does is it.... To back up a bit, as you know, in Bill C-7, we have two tracks, one where death is reasonably foreseeable and one where death is not reasonably foreseeable.

We've already dealt with the fact that we have not defined “reasonable foreseeability”. On the track where death is not reasonably foreseeable, there are a number of safeguards that are in place.

On the track where death is reasonably foreseeable, we know that the 10-day reflection period that Parliament included in Bill C-14 is being eliminated. On the track where death is not reasonably foreseeable, the government has put in place a 90-day reflection period. It's interesting that on the one hand there's a reflection period being eliminated and that, on the other hand, there's a 90-day reflection period.

Our amendment CPC-6 would ensure that rather than “90 days”, there are “120 clear days between the day on which the first assessment under this subsection of whether the person meets the criteria set out”, and the point when they can receive medical assistance in dying. In effect, it extends the reflection period when death is not reasonably foreseeable.

The basis for our proposing this is based on testimony that we heard. All of us, as members of Parliament, know that access to health care is an issue probably in all of our ridings and among all of our constituents. Particularly now with COVID, we're seeing even more delays in the system.

I mentioned them before, but the Canadian Society of Palliative Care Physicians specifically points out that under the proposed two-track system, where death is not reasonably foreseeable, the 90-day assessment period may not provide sufficient time for a person to receive appropriate palliative care or other supports needed to reduce suffering and live with dignity.

We also heard from other physicians who are specialists. We heard from MAID assessors quite a bit. These are specialists who deal with any variety of injury as well as sicknesses that people who may now be eligible for MAID would have to be dealing with. The feedback we had from those physicians as well as the physicians who deal with palliative care is that 90 days may not be sufficient. Upon studying this and consulting, and then based on the witness testimony we heard, we proposed this amendment that would increase this by a modest amount.

Is 120 days the exact right number? Is 90 days the right number? We don't know. What we do know from the testimony we heard about the 90 days is that it's not enough. Therefore, 120 days is a step in the right direction.

I mentioned the physicians who deal with palliative care, but we also received a submission from Physicians Together for Vulnerable Canadians. That is the submission that had over 800 signatures, not from MAID assessors but from physicians who deal with any variety of sickness that people may be dealing with. I want to draw the committee's attention to the second page. They say, “We live in a country where the wait time to see a psychiatrist...is 4-8 times longer than the 90-day waiting period”. Just for psychiatric care, the waiting list puts someone beyond the 90 days. What they're saying is that for situations where death is not reasonably foreseeable, the 90 days is woefully inadequate.

We've heard testimony that people within that 90 days can have ups and downs. The government acknowledges that some period of reflection is appropriate when death is not reasonably foreseeable, but what we're hearing overwhelmingly from physicians and from palliative care physicians is that 90 days is not an adequate reflection period.

Wherever you stand on the issue of assisted death where death is not reasonably foreseeable, ensuring we have the right safeguards should be something that we can all agree on, and the evidence we're seeing is that 90 days is not satisfactory. That's why our amendment would increase it to 120 days, which still may not be adequate, but we are proposing a number that recognizes that 90 is not enough in the hope that members of the committee would see it for what it is. It is a reasonable effort, where death is not reasonably foreseeable, to provide further safeguards for people who are at a very vulnerable point in their lives, to make sure they get the medical assistance that they can get and that we have more time for the provision of health care services to take effect—let alone to see those specialists—but also to have some movement towards recovery, hopefully.

We heard testimony at committee about individuals involved in a significant accident, for example, and someone who could be rendered paraplegic. This 90 days is not going to give them the time to see what opportunities they could have. That is why I'm asking that committee members consider this very reasonable amendment to increase from 90 days to 120 days the reflection time when death is not reasonably foreseeable.

I thank committee members for their consideration, Madam Chair.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you very much, Madam Chair. I too would like to express my support for Mr. Manly's amendment. I believe it is very reasonable and, in some respects, a modest amendment.

We heard over and over again from witnesses, particularly those representing persons with disabilities, of the inadequacy of the provision, in the context of where death is not reasonably foreseeable, to merely inform a patient of alternatives. To merely inform a patient without requiring them to seek any alternatives or without any guarantee of seeing that they have access to those alternatives puts vulnerable people at risk, vulnerable people who are often in their most vulnerable state upon making a request for medical assistance in dying.

I would note that the minister has often said, and others have said, that when someone makes a request for medical assistance in dying, they have long thought through the process and it's therefore somehow important that it be expedited, which I don't quite understand. When we're speaking about where death is not reasonably foreseeable, it opens the door to persons who might have had an accident or a traumatic event or a diagnosis that causes them to have their life literally turned upside down. We heard evidence of suicidal ideation, particularly in circumstances where people have bad news or where they are experiencing significant pain and suffering, without having an opportunity to identify or determine what possible treatments might be available to them.

I would note that Dr. Catherine Ferrier appeared before this committee. I'm going to read this into the record because I think it's important in the context of this motion. She is a physician who has worked since 1984 in the geriatric clinic at McGill University Health Centre. She noted in her testimony that:

The suicide rate after traumatic spinal cord injury is [five] times that of the general population for five years. Those who choose suicide may not [have a diagnosable depression] or [be] incapable of decision-making. Their options have been tragically narrowed, and it takes a long time to readjust, but people do. After five years, the rate is the same as that of the general population. They need protection from their despair. That's why our society responds to suicidal desires with prevention. That's why [it makes no sense to] allow MAID after 90 days [for people who are not near the end of life].

She objects to the 90-day period. One can debate that. I, too, don't agree with the 90-day period. With respect to Mr. Manly's amendment, I've cited one example, but there are many other examples of people who suffer from a disease or illness who have much higher suicide rates until after a period of time when they can adjust. It speaks, therefore, to the importance of the amendment, to not just provide information but to see that they can get appropriate consultations.

I would note that this amendment is consistent in some ways with what was said in the final report of the External Panel on Options for a Legislative Response to Carter v. Canada.

That report, which was very important when we were giving consideration to Bill C-14, said “a request for a physician-assisted death cannot be truly voluntary if the option of proper palliative care is not available to alleviate a person's suffering.” Surely someone should, at the very least, be required to go through a consultation in circumstances where death is not reasonably foreseeable.

I would note that Canada, by going down this road, would be an outlier in the world. We would have, arguably, the most permissive regime in the world. I would note that in the Netherlands, for example, a physician must confirm that there are no other potential means to relieve suffering before administering medical assistance in dying to a patient. Here we would provide merely information but no obligation to ensure that the person could truly make an informed decision. You can't make a truly informed decision and you can't exercise your autonomy if the choice is simply intolerable suffering versus medical assistance in dying.

I believe that Mr. Manly's amendment, for all of those reasons, makes sense.

I will say I find it troubling that when we have heard from 72 national organizations representing persons with disabilities and the rights of persons with disabilities, when we have heard concerns expressed by the UN special rapporteur on the rights of persons with disabilities and when we have heard questions asked about Canada's compliance with its international obligations under the Convention on the Rights of Persons with Disabilities, including article 10, that the members on the government side have given short shrift to all of those concerns. I would just—

[Rob Moore, Conservative, Fundy Royal, NB]

Speaking to the amendment as amended, I didn't hear much testimony in this regard. It seems the very opposite of a safeguard. I realize this is a moving target, because we're all hearing about this new language and getting a translation of it in English and French in real time.

We've heard how MAID providers, as Mr. Garrison said, are enthusiastic about removing the 10-day reflection period, while palliative care doctors are in favour of maintaining it and having a reflection period. Persons with disabilities are in favour of having a reflection period. Here we have a situation where the legislation requires that there be “a written opinion confirming that the person meets all of the criteria set out in subsection (1)”, and that be provided by someone with expertise in the condition the person is suffering. What this amendment would do is say the MAID provider would get a written opinion from a medical practitioner or a nurse practitioner confirming the person meets the requirement.

At first blush, the way I take that, the safeguards were here under Bill C-14, and now we're moving them down in Bill C-7. This amendment just chips away at another safeguard.

We've already discussed, on a previous amendment of ours, when death is not reasonably foreseeable, requiring someone with expertise in the person's condition to be one of the two physicians.

Here again, we're putting the MAID provider in the position of the go-between, between the patient and someone with expertise in the patient's condition. To me, that's not acceptable, and I would be voting against amendment NDP-2 as amended by the government.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Madam Chair

I am not aware of what ideology Ms. Findlay is referring to. I would like her to put a name to my ideology, other than its respect for human dignity. I don't think it has anything to do with ideology, but rather the principles that underpin our lawful society. When one is in favour of respect for human dignity, it is essential for it to go beyond the merely theoretical. That is why the law enshrines the principle of human self-determination in its biomedical decisions. No one can cause harm to someone without their free—with an emphasis on the word “free”—and informed consent.

Once a person has come to a decision, why would you have to give them more time, you ask? If they have changed their mind, that's their decision. We should also avoid the other side of the coin, by which I mean people who don't want medical assistance in dying to be administered at all in their hospital or institution. There are not a lot of MAID practitioners.

Let's consider a terminally ill patient who has battled cancer for 20 years and has been in palliative care for a year. There is no cure. One day, the patient ends up in emergency because the body can no longer function. If for 20 years it had been clear in that patient's mind that this was what they wanted and preferred, perhaps there might be a change of heart once they find themselves in an optimal palliative care context. Nothing in Bill C-7 or Bill C-14 prevents anyone from changing their mind. But the courts told us otherwise when they ruled that Bill C-14 and the Criminal Code infringed the right to life of the person.

Things need to be put back into perspective. I have a lot of respect for religious authorities, but when I am quoted comments made by a cardinal in a clause-by-clause debate, and told these should be included in the minutes, I get the impression that we are swinging back to the other extreme.

Respect for human dignity implies that we treat other humans as an end, and never as a means of imposing an ideology on them, whether religious or otherwise, or an authority other than their own. No authority other than that of the person dying, or the person suffering from an incurable illness causing intolerable pain, should determine on their behalf what level of pain is tolerable to them.

That is what we are talking about today. Everything possible to alleviate pain during the transition to death; that is what we are pursuing. The fact that some people assume, in support of some ideology, that a person in the throes of death needs more time, leads me to believe that perhaps they would like that person to die before the medical assistance in dying begins.

I do not wish to continue to impugn their motives, but would like my Conservative colleagues to respond in kind. The only principle guiding our deliberations today is respect for human dignity, which requires total respect for people's right to self-determination. Throughout our lives, the law protects our self-determination. Why should the state withdraw this principle at the most private moment of a human being's life? That is the substantive issue here.

We are trying to make it easier for people not to suffer and to have their wishes respected. Some witnesses, practicians and doctors who proffer palliative care came to tell us that they knew better than the patients what was good for them. They tried to make patients change their mind because they felt that the patients were not assessing their own condition properly and that they should be allowed to die only at the end of their anguish.

That is not the kind of medical practice I want to promote. I can tell you that if a patient decides to die only at the end of the road, I will be there to help because that was their decision. The bill does not prevent anyone from dying a natural death.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

A couple of my points were made by others and I promise I won't remake them. I do want to respond to MP Garrison, who mentioned that assessors and providers of MAID are in favour of waiving the 10-day reflection period.

Consultation went into Bill C-14. We were supposed to have a parliamentary legislative review this past summer that would look back on what the Canadian experience has been in dealing with assisted dying. Based on consultation on Bill C-14 and based on international norms, Parliament put in a 10-day reflection period that could be waived when appropriate.

Now the Liberal government has put in a 90-day reflection period when death is not reasonably foreseeable, but we'll get to that later. This 10-day reflection period is important. Mr. Garrison mentioned individuals who, on the 11th day, received MAID. That's not taking into account the people who, within that reflection period, decide not to go through with MAID.

As Mr. Cooper pointed out, this happens, and we have to give people that opportunity if we believe that life is important and every life is important, as we heard from individuals in the persons with disabilities community. I felt the value of their lives as they presented at our committee. Their perspective is important. Their lives are important.

We know overwhelmingly that people can and do change their mind about assisted death. It happens. This has been characterized as people who have days or weeks or hours to live. That is not what this is about. This is about, in some cases, people who could have years to live.

The least we can do as a safeguard.... We're putting in place this regime. Everywhere else has safeguards. We need to have safeguards. This was a safeguard that was seen as appropriate just a few years ago. This is not something new. This is something that existed in the previous legislation and we want to make sure we maintain that.

We can talk about assessors and providers of MAID. Well, I'm also talking about the Council of Canadians with Disabilities. I'm talking about the Canadian Society of Palliative Care Physicians. These are physicians who deal, day in and day out, with end-of-life issues. Those physicians are saying to maintain this 10-day reflection period. I don't know how we as a committee can just ignore that and cherry-pick the odd thing that we agree with from people who have a completely different perspective, being the assessors and providers of MAID. Maybe the assessors and providers of MAID should not be the ultimate authority on all things dealing with MAID, including the safeguards and the 10-day reflection period.

We need to have a balanced approach. We've listened to the assessors and providers. I also want to listen to people with disabilities, other specialists and palliative care physicians. We cannot make this a closed club where the only people we listen to are the ones who provide MAID. That is not how this does work and it's not how it should work.

I'll leave it at that, Madam Chair. I thank everyone for their contribution to the discussion on this amendment.