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.

Criminal Code

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Mr. Speaker, it is once again my turn to commend my colleague from New Brunswick, whom I respect and hold in high esteem. In committee, we worked together a great deal and did so positively and constructively. I got to know him, and I believe the feeling is mutual.

Earlier, our colleague mentioned that there are words in the bill, such as “incurable" and “advanced state of decline”, that were not in the Carter decision. There are also words such as “minors” and “reasonably foreseeable” that were not in the Carter decision. Why am I raising the subject of “minors”? Because that was touched on in the majority report. As for “reasonably foreseeable”, that is not clear enough to us.

I would like to hear my colleague's thoughts on the debate that has been going on across Canada for a few weeks now about how to define “reasonably foreseeable”.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, my colleague from Louis-Saint-Laurent's question is an excellent one.

The words “reasonably foreseeable” can cause some confusion from a legal point of view. What is reasonably foreseeable? There are many ways to interpret those words. It is true that those words do not appear in the Carter decision and that removing them from the bill would be a good thing.

My colleague often referred to the Quebec version of the law, which is about the moment when a person is at the end of his or her life. The words “end of life”, however, can also cause confusion from a strictly legal point of view. When does end of life begin? Is it 24 hours before a person dies, a week before death, a month before death, or is it the moment when a doctor confirms that no treatment can save that person's life?

The committee needs to take a close look at those words to ensure there is no ambiguity that could open the door to a legal challenge.

[Rachel Blaney, NDP, North Island—Powell River, BC]

Mr. Speaker, in the backgrounder, the government refers to having equal access. I am curious as to why the provisions to protect the personal convictions of health care practitioners are not included directly in the text of this bill.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, I am not sure I understood my colleague's question correctly.

The independence of doctors is not included anywhere in the bill. Doctors can in fact be independent, because two doctors are needed to approve the consent when a competent adult is seeking medical assistance in dying. This is actually referring to two doctors who are independent in relation to the person seeking medical assistance in dying. If I understood the question correctly, that is what I think.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciate the fine comments made by my colleague.

I have raised the issue of palliative care a great deal today. As we go through the debate on this legislation, a lot of members have been talking about the importance of palliative care. Could the member provide some thoughts from his constituency on the whole issue of palliative care? This has been thoroughly discussed as we have debated this bill. Does the member have any thoughts he would like to share with regard to this issue?

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Mr. Speaker, I thank my colleague for his excellent question.

He definitely must have read the report produced by the Special Joint Committee on Physician-Assisted Dying, which recommends taking a long, hard look at palliative care and developing a policy on the issue.

Because of the Carter decision, time is of the essence. To respond to the Carter case meant responding to medical assistance in dying based on the charter and the Criminal Code, which prohibited medical assistance in dying. Palliative care was not the crux of the debate in Carter, although everyone seems to agree that we need to think carefully about this service and provide it for Canadians.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, so says section 7 of the Canadian Charter of Rights and Freedoms.

In February of last year, the Supreme Court applied those words to strike down the criminal prohibition against assisted dying.

As a matter of policy, this was a welcome decision. Blanket bans are an ill-advised form of regulating conduct that is not inherently wrongful. The criminal law is a blunt instrument, often imposing costs beyond the benefits it seeks to achieve and it should be resorted to sparingly.

An optimal policy involves nuance legislation that protects those at risk without preventing others from making their own choices and directing their own lives as they see fit.

In response to the Supreme Court's decision in Carter, the government has drafted Bill C-14. The government states correctly that it is no longer a question of whether to legalize assisted dying but how we should do so. In other words, relitigating Carter is a futile exercise when the Supreme Court has already spoken, unanimously no less.

Still, it remains useful to understand how we got to where we are. If we are to adequately address the court's concerns, we should have a complete understanding of those concerns. Having studied section 7 of the charter in depth, I would like to first briefly explain what the Supreme Court requires of us on this issue.

Section 7 of the charter provides the right to life, liberty, and security of the person qualified by the principles of fundamental justice. A violation of life, liberty, and security of the person is only unconstitutional if there is also an infringement of a principle of fundamental justice.

The court has stated that those principles are to be found in the basic tenets and principles of the legal system. The key principle to understand on this issue is over-breadth, or what we refer to as “minimal impairment” under the classic Oakes test under section 1. If a law infringes life, liberty, and security of the person, over-breadth requires the law to be reasonably necessary to achieve an important government objective.

In Carter, the court first determined that the blanket criminal prohibition against assisted dying engages life, liberty, and security of the person. In the court's words:

Liberty protects “the right to make fundamental personal choices free from state interference”.... Security of the person encompasses “a notion of personal autonomy involving control ...over one's bodily integrity...”...

Second, the court determined that the blanket prohibition was over broad. The purpose of the legislation, as defined by former Justice Sopinka in the earlier Rodriguez decision, was “...the protection of the vulnerable who might be induced in moments of weakness to commit suicide ...”. In the court's view, the absolute prohibition on assisted dying went too far. While protecting vulnerable people is the law's object, it caught people outside of this class: those who are competent, fully informed, free from coercion or duress, yet choosing to end their lives.

We are now faced with new legislation, Bill C-14.

Our first job is to assess whether this legislation meets the criteria set by the Supreme Court. To answer this, we must first assess the government's objective, now a dual objective: one, to provide a means by which those subject to grievous and irremediable suffering can die with dignity; and, two, to protect those who wish to continue to live from coercion or undue influence.

Is this legislation reasonably necessary to effect these twin purposes? The answer is, unfortunately, not a resounding yes. It is a resounding almost.

I have real concerns, for example, that limiting access to those for whom death is “reasonably foreseeable”, however one seeks to define that term, would have precluded one of the applicants in the very Carter decision from accessing the new regime.

There is no evidence presented by the government that limiting access to terminal illness is necessary to protect the vulnerable, provided other safeguards are put in place, and it is an open question whether this provision is constitutional.

As one constituent aptly put it, “What Bill C-14 says is: I can express a desire to die when I'm terminally ill, but if I'm not considered competent, it won't count; I can express a desire to die when I'm competent, but if I'm not considered terminally ill, it won't count.” This should be remedied before we pass this legislation.

The remainder of the law may well fall within a range of reasonable options and therefore be charter-compliant. but that cannot possibly be what we aspire to in the House. We may have been tasked by the court to address the constitutionality of the current laws, but we are tasked by Canadians to go beyond that. The law we put forward should not simply fall within a range of reasonable options. It should be the best possible law we are capable of drafting.

I have met with many constituents over the last number of weeks and months to discuss this issue. In early April, for example, we hosted a town hall on the topic. It is, rightly, a sensitive topic for many.

My constituents' views and opinions have informed the following thoughts, all of which revolve around the importance of choice.

First, my constituents overwhelming favour advance directives. I appreciate that this is a complex area. It is one thing to assess an advance directive regarding a permanent coma and another thing to assess an advance directive regarding differing degrees of dementia. However, simply because a matter is complex or difficult does not mean we should not attempt to address it. I believe we need to look at advance directives more seriously and that many of the worries regarding stale decision making can be resolved by sunset clause provisions.

As former Chief Justice Lamer said in Rodriguez, the legal system should not deny consent but should seek to ensure that such consent “is as independent and informed as is reasonably possible”. With appropriate safeguards in place, witness requirements, competency assessments, informed consent through advance directives should be respected.

Second, my constituents overwhelmingly favour placing assisted dying within the context of end-of-life health care overall. Under our charter, access to assisted dying cannot depend upon the availability of palliative care, but, as a matter of policy, for there to be a real choice, we should invest significantly in palliative care options. The $3 billion promise for home care investments is a good start, but it is only a start.

Third, choice depends upon competency and capacity. A competent adult should not be defined by age, but by capacity to understand and to choose.

Fourth, a small but vocal group of constituents have asked for choice for doctors, the right to conscientiously object. It is important for the government to acknowledge the deeply held beliefs of some doctors and we must do our best to reconcile those beliefs with the importance of providing access to assisted dying across our country. It is reasonable to respect doctors' choices, at the outset a cautious approach, providing patients with a public list of participating health professionals across the country.

Fifth, and finally, a similarly cautious approach regarding mental health is also warranted. The foundation of the court's decision was autonomy and dignity, and mental illness, including depression, can impinge upon fully informed and free choice. The law does not require anyone to choose life or death, but allows Canadians to make that deeply personal choice for themselves. For some, the right to life precludes assisted dying, but for others, including former Justice Cory, the right to life includes the right to death.

I will support this legislation at second reading and I hope it will be improved at committee.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I fully agree with what the member opposite said about the need for palliative care as an option. Therefore, could he comment on why it is not part of Bill C-14 and why the word does not even appear in budget 2016?

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, I was also perplexed that we did not see palliative care options in budget 2016. We have made a commitment to spend $3 billion on home care, as I understand it, although I am not spending the money personally or individually, so I cannot make that choice on my own.

However, I do know that we are committed to working with the provinces, first and foremost, to establish a new health framework. I am convinced by this government that we are committed to investing in home care through that framework.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Speaker, the member gave an excellent presentation. In fact, I have listened to all the speeches that have been given so far and they are all excellent. Some are for the legislation and some are against. Almost all members speaking for or against the legislation have said that they have some serious concerns about the legislation. The problem is that the Supreme Court of Canada has already extended the time once and the next date is June 6.

The fact is that we are all admitting that there are serious concerns with this bill. It has been studied by a committee of members of Parliament, a committee of the Senate, and the justice committee is reviewing it now as we speak. Should we be rushing through with this? This is a very serious issue. We all agree that this bill is not perfect and we can do better. Therefore, the question is whether we should be asking for yet another extension so members of Parliament and the Senate can spend more time on this subject.

[The Speaker, Liberal, Geoff Regan]

Before I turn to the hon. member for Beaches—East York for his reply, I want to take this opportunity, since the hon. member for Dufferin—Caledon has made mention of the excellent speeches we have heard this evening on this topic from both sides, and I appreciate his comments in that regard, to say that I appreciate the tone of this debate and the desire of all members to take part in it in a very serious and respectful way.

The hon. member for Beaches—East York.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, we have had a parliamentary committee do incredible work getting a report out after holding hearings that would have taken months and months on end in a very short time span. We have legislation before us that requires fixes, yes, but in the main part addresses the Supreme Court's concerns.

I do not believe an extension is necessary. I do not believe it would be granted if sought. I believe it is incumbent upon this House to act expeditiously and get this legislation passed.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, I appreciate the member's particular focus on the absence of advance directives in the legislation. I share his concern. I would like to explore that a little more with the member. Perhaps he could shine a light on why this might have been missed and how we could fill the gap.

In paragraphs 13 and 14 of the Carter decision, the Supreme Court referred to the cruel choice that is posed to legally competent patients facing degenerative diagnoses, and those who have to choose between taking their lives prematurely or losing capacity later on. The member referred to that in his speech. The solution proposed by the all-party committee, which I salute, was to allow them to record their wishes while legally competent, and then through an advance directive, which would be subject to the same stringent medical and legal safeguards as the instantaneous request that is more identified in the legislation that is before us.

I am hoping the member can shine a light on why his government ignored that very specific and very constructive recommendation.

[Nathaniel Erskine-Smith, Liberal, Beaches—East York, ON]

Mr. Speaker, I do know that the Canadian Medical Association has raised concerns and red flags with respect to advance directives. I expect that that worry has led my government to proceed more cautiously.

We can note that the parliamentary report in and of itself provided for advance directives, but limited to where individuals had been diagnosed. Even among advance directive advocates, and in looking at that parliamentary report, we can in fact go further. I personally think we ought to go further.

While, unfortunately, those advance directives did not find their way into this legislation, my hope is that parliamentarians across the aisle and on this side of the floor can work together to ensure that we protect fully informed choice, whether one is terminally ill or not, whether one has been diagnosed or not, through advance directives.

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I will preface my comments tonight by saying it is not my intent to offend anyone, but I do believe that this is the time for plain speaking.

This bill is about choices and it is about rights. Although I resent that the Supreme Court has ignored 15 rulings of Parliament that said we did not want to bring in any law on this subject, I respect that we have to bring one in by June 6. Of course, if we do not bring one in, I am not sure that the consequence is worse than this rushed Bill C-14. As I understand it, if we do not bring in legislation, we remain in the circumstance we are today, where there is the precedent of the Carter decision but no law in either direction for or against.

I said that the bill is about choices and rights. First, let us talk about choices. If I want to kill someone, myself, my baby, or someone else, this is a choice I can make today in Canada. Each one has consequences not just for me, but for many others. If I kill myself, my insurance will not pay out, and that will affect my family. They will also deal with, hopefully, the emotional trauma from the shock of missing me.

If I kill my baby pre-term, I have to live with that, and the father of the baby has to deal with it, but otherwise, there is currently no consequence.

If I kill someone else, I risk imprisonment. I understand that the Carter decision is trying to ensure that even people who cannot pick up a gun themselves can choose to get assistance in killing themselves.

However, their choice does have an impact on others. It has an impact on the health providers who are opposed to participating and whose rights of religious freedom and the right to refuse to participate are not adequately protected in this current version of Bill C-14.

It has an impact on the taxpayer, who will be paying for several doctor consults, and if some of the suggested amendments come into place, additional psychiatric reviews or judicial reviews, as well as the drugs to do the deed. When we kill ourselves, we pay for the bullets or the rope.

Let us look at how this legislation addresses the Carter decision. Keep in mind that the Carter decision limited the scope to those who are over 18, terminally ill, and can give consent. I do not see anywhere in the Charter of Rights and Freedoms that we have the right to die, only that we have the right to live, so certainly the Carter decision, in my view, is flawed.

However, the decision limited the scope to those over 18, terminally ill, and with the ability to give consent, so I find it incredible that this bill before us is looking to study extending this right to mature minors, to those with psychological only conditions of suffering, and those who do not qualify as mentally competent to give consent.

I was a youth leader for over 30 years, and I have known young people who broke up with their boyfriends and girlfriends and who took their own lives. These were tragedies that could have been avoided if hope and counsel had been provided. However, there will be many more lives taken before their time if we allow mature minors to ask for assisted death.

This is a dark path. We should not be studying it or even considering it.

With regard to the studies on whether people who are mentally ill should be able to request medical assistance in dying, I am asking that the bill be amended to ensure that it does not provide for that possibility at all.

Many people suffer from depression, but it is treatable. I know many people who take anti-depressants and medications that come with a warning that possible side effects may include suicidal thoughts. If we start killing people who are not actually dying, it is akin to murder.

For those who want to give their advance consent to be killed later, I ask them: why wait? Why not let them choose suicide when they are still able to commit suicide, rather than letting someone do it for them? They are not choosing to commit suicide in the beginning because they want to live as well and for as long as they can. That is why Canada needs good palliative care.

In my riding of Sarnia—Lambton, we have excellent palliative care. St. Joseph's Hospice has a wonderful staff, and we have the co-operation of Bluewater Health, the VON, community care, and so many other organizations, along with palliative care specialists who give the end of life dignity and meaning.

However, because palliative care is not completely funded in Canada, the hospice has to undergo significant fundraising of some $1.4 million each year. Government funding covers only 43% of the costs. Food, building maintenance, program coordinators, day hospice, and crisis support are not covered.

The cost of palliative care at home or in hospice is one-quarter of the cost of palliative care in acute care facilities. However, Bill C-14 would not do what it so simply could: amend the Canada Health Act to make palliative care a covered service so that all Canadians would have the end-of-life care that would cause them to choose life. Yes, of those who have good palliative care, 95% of them choose to live as long as they can and as well as they can. That is something missing in this bill.

Now that we have talked about choices, let us talk about rights. Most people who want to kill themselves can pick up the gun, or take an overdose, or hang themselves, or whatever. We are not talking about a huge percentage of people who cannot pick up the needle or swallow the pill. We are talking about a very slight minority of people. On the other hand, we have millions of health care workers, doctors, and nurses who for reasons of religion or otherwise do not want to participate in the killing of people, yet this bill says nothing about that. The rhetoric when the bill was presented said that health care providers would be able to refuse to participate or refer. However, based on the history of broken promises, I would want to see that one in black and white in the bill to be sure that the intent to protect the rights of health care workers is captured.

Let us move on to the subject of taxpayers' rights. When an individual decides to kill himself, he pays for his own bullets or pills. Now, the bill seeks to transfer that burden to taxpayers, who will have to cover the cost of medical consults and associated administrative formalities. I am opposed to my tax dollars being used to kill people.

I believe that, if people want to kill themselves, they should have to pay for the entire process. Some may say that killing people costs less than taking care of them, but that is a slippery slope, is it not? It creates a situation where we may start calculating the price of keeping people alive. In time, death may become a way to save money.

That was the case in all of the other countries that have implemented similar legislative measures. Belgium, the Netherlands, and Denmark all started out with strict guarantees. However, these guarantees were hard to implement and were eventually set aside.

After that, it became easy and practical to get rid of vulnerable and undesirable members of society. The percentage of deaths rose from less than 1% to 6%. I do not believe that there is enough accountability in this bill and I would like to see improvements made in that regard.

As I said, this bill is about choices and rights. I believe the bill does not do enough to protect the rights of health care workers, the young, and the vulnerable. I believe the choice to kill oneself should come with consequences, which are not well laid out in this bill, such as forfeiting of insurance and the cost of the deed for starters.

I am recommending that the bill be amended in committee to document the protection of health care workers' right to refuse without retribution, to capture the duty of the requesting individual to cover the cost of the process, and to remove from the scope of this bill the studying of mature minors, advance consent, and those suffering psychologically.