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

[Scott Reid, Conservative, Lanark—Frontenac—Kingston, ON]

Mr. Speaker, the minister in her comments said that nothing in the bill compels health care professionals to participate in assisting with a death. She also stated there is a federal interest in ensuring that nobody is denied access to medically assisted death. This raises a problem. A charter right to something cannot be withheld by someone else who is either a government agent, or is operating within the purview of a set of rules that gives them a monopoly over providing access to that right.

The minister could correct this problem. It will essentially cause the courts to require health care professionals to provide assisted death against their own consciences and will, unless the following change is made. She could add a specific protection to the law that would meet the section 1 charter requirement. It says that the rights and freedoms set out in the charter are subject only to “such reasonable limits prescribed by law”, which means statute, “as can be demonstrably justified in a free and democratic society”.

If the minister did that, there will be protection for physicians. If not, it is only a matter of time before the courts require physicians to provide assisted death. That will result in terrible crises of conscience for physicians who would not want to do that based on their profoundly held moral beliefs.

[Jane Philpott, Liberal, Markham—Stouffville, ON]

Mr. Speaker, I look forward to further conversation with the member about this matter. I will continue to discuss this with my colleague the Minister of Justice as well.

I want to make sure that the member understands that physicians and other care providers make deeply complex decisions every day. They approach their work with thoughtfulness. They approach their work with their conscience intact. They will need to be able to continue to do that. We need to make sure that those conscience rights are protected, as they are now. We also know that Canadians need to be able to have access to this care. Those physicians and care providers will undertake to make sure that care is transferred, in the situation where they are not able to provide a certain type of care for any reason, including the reason of conscience rights.

I am determined to work with my colleagues across the country, with the Canadian Medical Association, the Canadian Nurses Association, to make sure that this is well understood, that we find mechanisms to make sure there is a care coordination system, so that no one will be denied access to medically necessary care.

[Pierre-Luc Dusseault, NDP, Sherbrooke, QC]

Mr. Speaker, I thank the minister for her speech.

She recognizes that the right to physician-assisted dying is a constitutional right in light of the court's recent decision. That is what she said. She also wants to protect physician conscience rights. Speaking of which, what mechanism will she put in place to ensure that every Canadian has the constitutional right to physician-assisted dying, while also protecting doctors' rights to choose whether to engage, or not engage, in this practice?

This service must also be made available in places where there are very few doctors and very few medical services. What mechanism does the minister intend to put in place to ensure that all Canadians have equal access to this new right?

[Jane Philpott, Liberal, Markham—Stouffville, ON]

Mr. Speaker, I look forward to further conversations with my colleague about this.

If there is anything we heard loud and clear, in a uniform way across the country, it was the matter of respecting the conscience rights of health care providers. We will continue to make sure that is upheld.

Members have also heard me say repeatedly in the House that I believe Canadians need to have access to all forms of medically necessary care across the country. That is a fundamental principle upheld by the Canada Health Act, which I will continue to uphold.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I am thankful and, to be honest, humbled by the opportunity to join this important debate.

Yesterday a group of high school students were visiting from my riding, and we talked for a few minutes about this debate and what would unfold in their Parliament. I told them that we were about to tackle one of those rare questions in the social and political life of a country, watershed moments, where we can translate our values into a law and touch the lives of Canadians in a profound way. I believe that this is one of those moments.

Let me say at the outset that I will be supporting this bill at second reading. New Democrats have decided that rather than seek consensus on a question so personal, we will be encouraging our members to take the time to consult with their constituents, to reflect carefully on this bill, and to vote with their conscience. Let me affirm my deep respect and admiration for members, wherever they sit in the House, who rise to express views that may differ from the views that I have on this bill.

I am reminded of something a former Conservative member of the House said when he appeared before the joint special committee. At the end of his eloquent and moving testimony, he stopped, looked around, and said, with his usual knack for not pulling any punches, “By the way, everything you decide here will affect every Canadian who is alive and every Canadian there will be in the future, and it will probably set the framework for the western world, so think about it.”

Let me say to Mr. Fletcher, to the young constituents who visited me yesterday, and to every Canadian who will follow this important debate in living rooms, law offices, and hospital beds, that I have every confidence that Parliament will give this bill the careful scrutiny it needs and the respectful debate that it deserves.

We are here because of the Supreme Court's unanimous ruling in the Carter case. The case was long and complex, but the decision was crystal clear. It states:

[...] s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death 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.

That is what the court concluded. It is noteworthy for its humanity. It does not force doctors or bureaucrats to parse a patient's suffering, or weigh precisely how much pain and fear is tolerable and how much is intolerable. Instead, it recognizes the ability, indeed the right, of competent Canadians to decide for themselves when their suffering becomes intolerable in the circumstances of their condition.

In fact, the next line of the judgment goes further, recognizing the right of those competent Canadians to define what treatments may be unacceptable for them. It states:

“Irremediable”, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.

In just seven lines, the Supreme Court of Canada, the highest court in our land, affirmed that competent adult Canadians could consent to the termination of life, could define uniquely and for their life what intolerable suffering means to them, and could define to a large degree what an irremediable condition means to them, respecting their right to refuse treatments they determine to be unacceptable. Not only did the court unanimously affirm the right of competent Canadians to make their choices, it found two provisions of the Criminal Code unconstitutional insofar as they prevent eligible individuals from doing so.

Let us remind ourselves of the meaning of that word “unconstitutional”. In explaining such a finding in the Constitutional Law of Canada, Professor Peter Hogg quotes a U.S. justice to say this:

An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.

Professor Hogg continues:

When a court holds that a law is unconstitutional, the invalidity of the law “does not arise from the fact of its having been declared unconstitutional by a court, but from the operation of [the supremacy clause of the constitution]”.

In principle, he said that the law is “invalid from the moment it is enacted”. The fact that the Supreme Court delayed the effect of its ruling in the Carter case does not detract from the force of that finding of unconstitutionality.

The court did not request that Parliament pare back the prohibition against assisted dying in these cases to a less intrusive level. It demolished the legal barriers that denied Canadians the choice as completely as if they had never been built.

The court then wrote:

It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.

That is what we are here to do, to measure this bill against the constitutional parameters illuminated for us by our Supreme Court.

I was proud to serve on the joint special committee on physician-assisted dying.

I worked on that committee with my extraordinary colleague from Saint-Hyacinthe—Bagot. I thank her for her many hours of work and for her in-depth knowledge of Quebec law. Her wisdom greatly improved our report.

Together with parliamentarians of all official parties and both chambers, we reviewed the Supreme Court judgment and the provincial court decision that preceded it. We looked at laws in Quebec and around the world. We reviewed two major studies, which together heard from 13,000 Canadians and more than 100 organizations. We held 11 hearings. We called 61 expert witnesses and took written briefs from individuals and groups from all across this country.

That committee had a duty, in my view, to make recommendations for all Canadians and to consider all the situations that might arise in the coming years, and seek clear answers, founded on the law, on medical evidence, and on our shared values.

I am so thankful to all members of that committee for their work, for their commitment to respect the collaboration beyond and above party lines, and for their dedication in helping Parliament pass a law that does respect the constitutional parameters set out by the court, indeed, a law for all Canadians.

Based on that broad consultation and that evidence, and a strong majority spanning both chambers and all parties, we agreed on 21 recommendations to ensure that eligible Canadians have the option, and to protect individuals in situations of particular vulnerability.

These recommendations were not made lightly. Each was made after lengthy discussion with an eye to the future. Each was rooted in careful consideration of the evidence, the requirements of the Carter case and of our Charter of Rights and Freedoms, and of course the rights of suffering Canadians.

I must be honest at this point. I was deeply disappointed to find the majority of recommendations of the all-party committee either missing from or contradicted by the provisions in the government's bill.

The all-party committee recommended that the law use the exact words of the Supreme Court. This bill would cloud those words with new and very vague and ambiguous restrictions. Let me pause on that point.

Without delving into the details, let me share two concerns about an area so crucial that, in my view and in the view of many experts who have called me, it inappropriately narrows the scope of the entire bill.

First, this bill would limit its scope to medical conditions that are “incurable”, a word the Supreme Court did not use and a requirement it did not set. While the court was quick to make clear that it would never force patients to undergo unacceptable treatments to prove their condition was irremediable, no similar direction is found in this bill, none.

It would seem to compel patients to undergo treatments that they would object to in order to be eligible for assistance in dying. That could prove to be cruel and unusual and in itself contrary to the charter.

Second, the bill limits its scope to patients facing what it terms a “reasonably foreseeable” natural death, another requirement found nowhere in the decision. In fact, this concept was never raised once before us by any witnesses in the all-party committee; nor, as far as I can tell, does it have any precedent in any jurisdiction. It is not hard to see why. After all, it is almost hopelessly ambiguous.

Does it mean a death that is imminent, or simply one that we can predict with confidence? The government has provided a glossary that suggests “foreseeable in the not-to-distant future” or “on a trajectory toward death”, but of course those terms could be applied to every single one of us.

I want to read the conclusions of one of Canada's most revered constitutional lawyers, Joseph Arvay, QC. He stated:

As the lead council in the Carter case, I probably know better than anyone the evidence led, the arguments made, and the full implication of the judgements at all levels and I have no doubt that the Bill, if enacted, would be struck down as unconstitutional insofar as the “foreseeability clause” is concerned and perhaps other clauses as well.

Given that the Department of Justice lawyers did not prevail at the Supreme Court of Canada and the case was decided unanimously against their position, I assume the minister has a comprehensive legal opinion from outside council. Will she table that opinion at the justice committee? Will she force desperately ill Canadians to have to go to the Supreme Court again?

These restrictions that have no root in the Supreme Court decision are so fundamental that they affect the scope of the bill itself. However, they are not the only ways in which the bill seems to reject the advice of our committee.

The all-party committee recommended that the law not exclude patients who completed a valid request in advance of losing their capacity. The bill would offer those Canadians nothing but the cruel choice the court spoke of, the choice between a death they consider premature and the rising fear of a life they consider intolerable.

The all-party committee agreed that indigenous patients should be given the option of culturally and spiritually appropriate end-of-life and palliative services. It agreed that mental health services and supports for all Canadians must be improved immediately. It agreed that far too few Canadians can access the quality palliative and end-of-life care they deserve, and it identified concrete steps for the government to take on every one of these priorities for Canadians, and yet the bill contains nothing binding on any of these. There is not one dollar of new funding, not one commitment or timeline.

Of course there are those who ask us to be patient, who say this is just a first step. However, incremental change offers cold comfort to those suffering intolerably today. Nor does our charter allow unconstitutional provisions to be made right by degrees, by steps.

There are those who say that, while improving palliative care, or obeying patients' advance requests, or protecting the conscience rights of health care workers are good ideas, they were not named in the Carter ruling and so cannot be included in the bill, but neither did the case mention nurse practitioners, or record keeping, or witnesses, or multiple doctors, all of which are addressed in the bill.

These are all good and practical steps. Indeed, many are recommendations of the all-party committee, so we must replace a conveniently selective attention to the Carter decision with a consistent commitment to the charter rights and health care priorities of all Canadians.

The reality is that this moment is not going to come again. Canadians are counting on us to get it right now. That means abiding by the letter and spirit of the Supreme Court ruling and strengthening the bill against obvious challenges to its charter compliance.

It means taking real action on the priorities that Canadians recognize that are connected, including better mental health services and more accessible palliative and end-of-life care options for everyone.

Specifically, I urge all members to consider recommendation 19 of the all-party committee, which called for the re-establishment of the secretariat on palliative and end-of-life care and the development of a fully funded pan-Canadian palliative and end-of-life care strategy in collaboration with the provinces, territories, and civil society.

As anyone who has sifted through the mountain of evidence on this issue can attest, it is easy to get lost in the details, but at the end of it all, we are called to a question of principle. It is a principle reflected in the words of Mr. Justice Binnie in another ruling, which I paraphrase here. He said that, while we may first instinctively recoil from a decision to seek death, it is clear that it can arise from a deeply personal and fundamental belief about how we wish to live. We are asked to consider in what circumstances we can deny adult competent Canadians suffering intolerably from a grievous medical condition the right to make these fundamental decisions, the choices in Carter of what constitutes intolerable suffering, and which treatments are acceptable.

This is about choice. Canadians want options when they near the end of life or when they find themselves trapped in intolerable suffering. In my view, the bill before us denies that to too many Canadians, in too many cases, with too little justification.

By leaving unresolved so many of the tensions that play in the Carter case, the bill invites immediate challenges on similar grounds. These court battles would necessarily engage the full legal resources of the government against the arguments of the most weak and vulnerable Canadians imaginable. That is not what Canadians want. We do not need more conflict, division, or delay. What we need is constructive compromise, and what we insist upon is compliance with the Supreme Court of Canada's unanimous decision.

No government can be expected to pre-empt every challenge to a new law, but a government can at least be expected to recognize that a Supreme Court of Canada decision is not a recommendation. It can do better than try to drive a square peg into a round hole.

We can do better than altering the careful words of our Supreme Court of Canada. We can do better than flatly contradicting the evidence of experts and the advice of parliamentarians from all parties and both chambers.

We can do better than excluding patients whose valid request is approved but who lose capacity just before it can be acted upon. We can do better than condemning those people to intolerable suffering because, of course, their condition did not match the letter the bill.

Finally, I believe we can do better than offering only non-binding promises of more discussion on issues that are as urgent as giving every Canadian the mental health services they need and the options for palliative and end-of-life care they richly deserve.

I truly believe what I told those young people from Victoria yesterday. This is a moment that will not come again for us as legislators.

We have a duty to see the House pass a bill that respects the Carter decision, that respects our Charter of Rights and Freedoms, and that accords with the priorities of Canadians. Sadly, in my judgment, the bill before us is not that bill, but it can be.

Therefore, let us give it the study it needs and the debate Canadians deserve. Let us make whatever changes are needed to meet those standards. Let us do this work together, let us get it right, and let us work assiduously for all Canadians to get it right

[Arnold Chan, Liberal, Scarborough—Agincourt, ON]

Mr. Speaker, I want to thank my hon. colleague, the member for Victoria, for a very impassioned speech and a very important contribution to the debate. I particularly take note of his objections, despite the fact that he has expressed his ultimate support for the legislation that the government has introduced in Bill C-14.

I want to specifically get to one of the objections that he raised, which deals with the question about the foreseeability clause.

He noted that the lead counsel in the Carter decision, Mr. Joseph Arvay Q.C., raised concerns with respect to the constitutionality of the proposed Bill C-14. I want to ask my friend what proposed changes would be necessary so that the definition of reasonable foreseeability, currently found in proposed paragraph 241.2(2)(d), would deal with the legal standard. I believe that is the nature of his objection.

I would add the caveat that, as I recall the Minister of Justice's presentation at the time, the determination of reasonable foreseeability would be left to physicians. Is there some amendment you could propose that would in fact address the legal standards, which I think is the nature of the objection?

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

I would like to remind hon. members to appreciate that they are speaking through the Speaker and not directly across the floor.

The hon. member for Victoria.

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, this is a very fundamental question that goes to the difficulty at the heart of this.

I want to be clear when referencing Joseph Arvay, who many consider the leading constitutional lawyer of his generation, that I do not mean to stop there. I have heard this concern about “reasonably foreseeable” from people from coast to coast, eminent jurists whom I respect enormously.

I would say the simple solution is to do what the Supreme Court told us, which is to simply use the words of the decision, the words “grievous” and “irremediable”. I do not know that anything has been added. I know a lot has been taken away by the definition that is there. I am hoping that the government is open to reasoned debate and amendments that are in the same spirit that we worked in under the joint special committee.

I believe we can do better. This clause is beyond comprehension to jurists of the highest quality and reputation across the country. Why is it there? It comes from nowhere. It comes from nowhere in the decision. It comes from no other jurisdiction that we have been able to find. All it would do is create uncertainty. Does “reasonably foreseeable” mean solely in time? Does it mean about conditions? Nobody knows.

It is that uncertainty that doctors are telling me they cannot accept. Therefore, they will be reluctant to provide the services until they get the kind of certainty that we tried in the committee to provide, and which Canadians will need. Those who are advising and insuring physicians and medical practitioners are certainly going to need more than words like “reasonably foreseeable”.

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

Mr. Speaker, I was pleased to hear the minister talking about international comparisons. One of my disappointments with the Special Joint Committee on Physician-Assisted Dying was that we did not do a sufficient study, at all, of what has happened in other jurisdictions where we have seen these laws brought in.

Specifically, I want to talk about a study that was done in Belgium in 2010, which was quoted in the Canadian Medical Association Journal. It surveyed nurses and found that a full 120 of 248 of them said they had been involved in cases of euthanasia where there was no consent. Of the 248 nurses who had been involved in euthanasia, almost half of them had been involved in cases where there was no consent. Yet, the direction we are going with this legislation, and the model that I know the member advocates, because it follows the special joint committee, is very similar to the Belgian model.

I would ask the member why Canada would follow Belgium when there have been significant problems with actual consent. Why do we not look at jurisdictions that have been more effective and put in place things like advanced legal review?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I thank my colleague for the question and for his work during the deliberations of the special joint committee.

The Belgian study to which he refers is one of many studies. In the judgment at the trial level of the B.C. Supreme Court, which is several hundred pages, Madam Justice Smith referred to these studies and others like them. She concluded that we can do better in our bill. She concluded that it was appropriate that the constitution reflect that competent adults have the ability to use physician-assisted dying, medical aid in dying, when they meet the very specific and stringent conditions that were articulated.

Consent is at the core of this. One has to be careful that there is consent that has not been pressured in any way. I think the bill does a good job of addressing that.

The idea of having some kind of advance legal requirement for consent determination and the like was rejected by the committee because it would be an absolute barrier to many people, particularly in remote communities, from being able to have the choice that the Supreme Court said Canadians constitutionally enjoy.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Mr. Speaker, I would like to commend the member on his very thoughtful speech today, and thank him for the work that he did on the Special Joint Committee on Physician-Assisted Dying along with the member for Saint-Hyacinthe—Bagot on behalf of our caucus. The committee was so ably chaired by the member for Don Valley West, whom I also wish to thank for his work on behalf of this chamber.

My question has to do with conversations I had with two constituents who are facing the issue of physician-assisted dying, and the case of my own mother last fall. This has to do with the advance consent notion.

I am going to use the case of my mother because I know it so well. She had medical conditions that were going to lead her to a position where it was going to be difficult to continue living, and she also had dementia. She wished to give consent in advance before the dementia got so bad that she could no longer give consent. When her other medical conditions advanced, she was no longer competent, so we were faced with very difficult decisions as a family, but what we did know was her very clear statements before of what she wished to have happen.

How would the bill deal with very difficult situations like this? Did the Supreme Court decision deal with these kinds of cases?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, first, I say to my friend from Esquimalt—Saanich—Sooke that I am sorry for the loss of his mother.

I want members to know that the bill would not do anything about that. It is a sad deficiency that I keep hearing about day after day in my office. People will not be allowed to determine, even if they have the very condition that they feared the most, dementia, Alzheimer's, and the like, what will happen at the end of their life.

We have the terrible situation, with real-world examples from British Columbia, where a person who worked all her life nursing people with dementia said, “I do not want that to happen to me, being spoon-fed and in diapers in an institution”. Contrary to her expressed wishes, this bill will do nothing to address that. That is the deficiency I hear most about in my riding as well.

Most Canadians asked for that. The polls are absolutely clear that the circumstance my colleague recounted is precisely what people fear, and this bill sadly will not do what the recommendation of the joint committee and others have urged us to do, namely, to provide in circumstances where people delineate precisely when it is time for that physician-assisted dying to take place. There will be no opportunity to do that. We can do better. We must do better.

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

Mr. Speaker, I have a quick follow-up to the member's previous response. I do not think it is a good response at all to say there have been other studies without actually quoting them.

We have seen significant studies from Belgium and other Benelux countries that show that without an effective system of advance legal review, which need not be onerous, and one suggestion has been to use consent and capacity boards which already exist at the provincial level, a simple system of not onerous advance review could be added to this legislation which would ensure that we do not go down the road that many of the studies have shown us going down in the Benelux countries. What is wrong with adding that basic protection?

[Murray Rankin, NDP, Victoria, BC]

Mr. Speaker, I appreciate the opportunity to be more specific.

Advance legal review would be an absolute barrier for many people, particularly in remote communities. I have confidence in doctors. Doctors do these things every day. They look after us in life, and I trust them to look after us in the last days of our life as well. To talk about a consent and capacity board which one province has and others do not is not helpful. We need to figure out how we can do this. We are absolutely required to address the needs of the vulnerable, but we cannot provide an untenable barrier to people whose constitutional rights are affected. That would not work, and we would oppose such an amendment.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

Resuming debate, the hon. member for Sherwood Park—Fort Saskatchewan. I just want to remind the member that he has about four minutes and thirty seconds, and the balance of his time will be returned to him when this issue comes before the House again.