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.

Motions in amendment

[Luc Thériault, Bloc, Montcalm, QC]

Madam Speaker, a bad law leads to a plethora of court challenges. That is what is going to happen with this bill if this vague concept is not clarified.

The worst thing about this sensitive issue is that patients will have to set the precedent. Vulnerable patients with grievous and irremediable conditions are going to have to shoulder the burden of going before the Supreme Court to make their voices heard. The Supreme Court is going to end up doing the work that the Liberal government should have done with us.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, earlier today the House voted on a motion regarding physicians' freedom of conscience, and I did not take notice as to how my colleague voted, so I would ask him this question.

In the context of Bill C-14 at report stage, Motion No. 14 calls for clear definitions of freedom of conscience. Would my colleague support those?

[Luc Thériault, Bloc, Montcalm, QC]

Madam Speaker, this bill does not compromise freedom of conscience.

However, even if the House were to pass a bill like the one we want, a bill that complies with Carter, health care workers who care for people who are terminally ill do not just materialize out of thin air. Palliative care is now a reality in end-of-life care. There have always been doctors who think that their patients can recover and who cling to that idea when they should be ensuring that those patients receive end-of-life care.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, it is an honour to be able to rise at report stage. I appreciate the decision of the Speaker to recognize that, if there was ever a time for exceptional circumstances and exceptions under our Standing Order 76.1(5), this is such an occasion.

The use of the exceptional circumstances here is to allow a real opportunity at report stage to improve the bill. This is not a fake debate about amendments that have no hope. It is my profound hope that the amendments before the House now as we debate this at report stage, with a free vote, with every member allowed to weigh in, can yet improve this legislation to the point where the vast majority of us will be comfortable voting for it with amendments. As it is right now, I do not know if this bill could pass this House in its current state.

Let me just go back for a moment, for context. I do think context and empathy are important on all sides of the House. Bill C-14 is the direct result of the Supreme Court of Canada's unanimous decision in February 2015 to accept that certain provisions of the Criminal Code violate the Charter of Rights and Freedoms insofar as they affect people who are suffering from grievous and irremediable medical conditions, and wish to have the right to choose their own time and way of dying. As the court wrote at the time, “an individual's choice about the end of her life is entitled to respect”.

In my time in Parliament, there has not been a bill that is more difficult to talk about, that touches more on aspects of our own personal principles, faith, beliefs, rights, and politics, all wrapped up in a charter decision. It has been difficult to talk about, but I think it has been approached on all sides with appropriate respect. As my colleague just mentioned, the chair of the justice committee, the hon. member for Mount Royal, did an exceptional job in steering through the many amendments that were reviewed in committee. However, not enough of those amendments were accepted to make the bill acceptable.

Let me go through why I do not think I can vote for the bill without amendments. It is not about what I think; it is not about whether I think the bill is satisfactory. I think everyone on all sides of the House, including government members, admit that it is flawed. It is not quite what one would want, compared to, for instance, the exceptional report of the committee that guided the government, the joint committee report of the House and Senate on how to respond to the Carter decision. This bill falls short.

That is not the basis on which I cannot vote for it now. It is not my opinions. Our challenge as parliamentarians is to ensure that whatever we pass meets the standard set out for us by the Supreme Court of Canada in assessing what it was about the status quo that made the situation for Kay Carter one that was not merely unfair but a violation of her charter rights.

That is the key question here. There is a level of provision for medically assisted dying below which government legislation cannot sink. That bar, that line, is charter rights, as set out by the Supreme Court of Canada.

I wanted to comment and focus a bit on this question, as set by the court, of an individual's choice about the end of her life being entitled to respect. I suppose we could wish that the court now used the female pronoun and intended it generically, as we have heard the male pronoun used generically throughout our lives.

However, I think it can be inferred that the Supreme Court of Canada, using the female pronoun, is talking about the plaintiff before them. It is talking about Kay Carter. Would Kay Carter have access, under Bill C-14, to medically assisted dying? Most observers whom I have heard at this point, knowledgeable observers, do not believe she would.

That, to me, is the crux of the debate, which means that her charter rights would still be infringed, even after we passed Bill C-14 as it is currently written.

This is why. Kay Carter was not about to die from her illness. She had a spinal stenosis that would not kill her. I want to refer to specifically the way Jocelyn Downie, professor of both law and medicine at Dalhousie University, described it that in her view Bill C-14 is unconstitutional. I want to read an excerpt from Professor Downie:

There was no evidence on the record before the court that Kay Carter's death was reasonably foreseeable in any temporally proximate way. In fact, it was just the opposite.

To pick one of many possible examples from the evidence before the court, as Kay Carter wrote in her letter to the Dignitas clinic in Forch, Switzerland:

The neurologist, Dr. Cameron of North Vancouver, assessed me and I had a CAT scan and MRI done. From these tests he told me that I had an ongoing, slow deterioration of the nerves that would never kill me but eventually would reduce me to lie flat in a bed and never move.

In other words, Kay Carter would not fit the definition within the bill that the requirement to be grievous and irremediably affected in a condition that would allow medically assisted death would be a death that was reasonably foreseeable. That clearly suggests, although the language is somewhat vague, that Bill C-14 requires that a person, to be grievous and irremediable within the meaning of the act to access medically assisted dying, has to be in a terminal state.

The court in its unanimous decision may have left some ambiguity for those who were hoping to find a loophole, but I do not think it is there, with the facts of the case right in front of them, Kay Carter, who was not in a terminal state. Beyond that—and this is where I have sympathies for the current government—the Supreme Court gave a year from the day of the decision in February 2015, but the Minister of Justice was not sworn in until November 4. The Prime Minister was not sworn in until November 4. The time limits imposed on the new Liberal government are not of its making, and I am clearly sympathetic.

I opposed at the time going to the court to ask for an extension because deadlines such as this, given the effect of the court's decision rendering those Criminal Code sections unconstitutional, will not create chaos or a situation that cannot be managed.

However, to go back to that moment when the Government of Canada went to the Supreme Court to obtain an extension, in this excerpt Madam Justice Karakatsanis says clearly in questioning one of the counsel: “I'm thinking particularly about somebody has to be a la fin de vie whereas in Carter we rejected terminally ill”.

Let me put it again clearly. A Supreme Court of Canada justice says that in Carter we rejected terminally ill. That is clearly the standard for ensuring that rights are protected: that we must not ensure that in order to access medically assisted death the person be on the verge of death, that their death be reasonably foreseeable, even if we take reasonably foreseeable back to a year or two years. Kay Carter did not have that circumstance.

Another medical expert who has written about Bill C-14 since it came forward, Professor Jesse Pewarchuk, who is a clinical assistant professor of medicine at the University of British Columbia, wrote:

Worse, the wording of the proposed law introduces significant doubt as to whether an Alzheimer’s patient who has yet to lose capacity (yet is certain to) would even be eligible, since death can take years, even from the point of entering long-term nursing care.

“Foreseeable death” and “advanced state of decline in capability” are loaded, ambiguous clauses that seem to eliminate the Charter rights of dementia patients...and to put any physician carrying out their wishes in considerable legal peril.

Without these amendments passing at report stage, I cannot vote for Bill C-14. In an ideal world, I would rather there were a framework of laws for doctors to follow, for nurse practitioners to follow—a framework, consent, reforms, and the witnesses and the independence and the elements of law. However, if these amendments are not passed, I cannot vote for a law that falls below the bar of what the Supreme Court says constitutes protection of charter rights.

[Anthony Housefather, Liberal, Mount Royal, QC]

Madam Speaker, I want to thank the hon. member for Saanich—Gulf Islands for her incredible contribution to our justice committee. Even though she is not a member, we welcomed her with open arms and she made a really great contribution. I want to thank her for that.

I understand her position related to the constitutionality of the legislation. I do not agree.

I would like to read from this article by criminal law professor Hamish Stewart, from the Faculty of Law at the University of Toronto, and get the hon. member's comments.

Professor Stewart says that, in his opinion, Bill C-14 in its current form is a constitutionally permissible response to the flaws of section 241(b) identified in Carter. It is, in his view, unlikely that a court would find the medically assisted dying regime created by Bill C-14 to be over-broad in section 7 terms. However, even if Bill C-14 is over-broad, it is likely justified under section 1.

Given the court's response in Carter and the court's careful examination of section 1 in Carter, which it previously has not done with section 7 cases, I would like to get the hon. member's feedback on that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, if I were standing alone, saying that I thought it was unconstitutional, I would be arrogant, at the least. However, Joe Arvay, who was the counsel for Kay Carter, the British Columbia Civil Liberties Association, the co-plaintiff in the case with Kay Carter, and so many of those who have studied this might rely on section 1, but I think that is a faint hope.

The Supreme Court, in making the decision it made, that there was a violation of Kay Carter's charter rights, took into account her entire condition.

There will be a challenge to Bill C-14. It will very likely be found to not be charter-compliant, and it falls far short of the expectations of Canadians.

I did not have time in my 10-minute speech to speak to something I spoke to at second reading, which is another disappointment that I have with the bill; that is, the failure to allow for advance directives.

Patients across Canada, people who are suffering, have a right to expect that this Parliament will, at least, reflect what the Supreme Court did in its decision.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, I know that my colleague indicated at the beginning of her speech that this is probably one of the most fundamental issues that this Parliament or any of us, as parliamentarians, will deal with, especially as it relates to the shifting moral ground upon which we stand.

I asked my colleague a question at second reading regarding the risk to patient-doctor relationship, as one of the concerns I have is that the risk to the trust level between patients and doctors may be affected.

I wonder if my colleague would care to respond to that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, my friend, the hon. member for Kitchener—Conestoga, and I have had occasion to speak outside the chamber about this matter. I have met with a very impressive doctor of palliative medicine who raised the issue that there could be an interference, which I had not understood.

I am comfortable to support Bill C-14, with the amendments, so I need to bracket my comment this way. I do think it is important that no patient fear going to a doctor, for a misplaced fear. It is not something that the bill brings forward, but the palliative care doctor said that, from his point of view, he did not want his facility to provide this service for fear that those who went through those doors might have any concern that they might be medically assisted in something to which they did not consent.

I see, under this law and under our society, no prospect of that ever happening, because the sanctions would be severe. However, I do understand the issue, now, which I had not when he first put the question to me.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, I would like to thank the member for her very eloquent speech and her comments on the bill. I appreciated all the speeches today. I am glad we are finally talking about the legal and charter aspects, rather than the emotional ones.

I wonder if the member could follow up on the question by the Conservative member. What I think is wrong to say is that this bill or the Supreme Court decision represents a shift in moral ground. Neither this bill nor the decision of the Supreme Court in any way imposes any moral decision upon anyone. It simply recognizes and upholds charter rights. I think that is a very important difference.

I wonder if the member would like to speak to that.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, this is a difficult moral question, but it is a difficult moral question for the individual who makes the decision. Therefore, the question is this. Does our society recognize that individuals have the right to make their own decisions, being adults, fully competent, capable of consenting, and fully aware of their options? It will be very important that people know about and have access to palliative care if that is an option that eases their end-of-life decisions. However, this is not losing Canada's moral courage; in fact, this is an act of moral courage.

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I am pleased to voice my support for Bill C-14, significant legislation that would become Canada's first national medical assistance in dying regime, and would provide a thoughtful and well-considered response to the Supreme Court of Canada's decision in Carter.

I would first like to acknowledge the remarkable work of the members of the House of Commons Standing Committee on Justice and Human Rights who studied Bill C-14 under some very tight time constraints and who nonetheless were able to significantly enrich our reflection and debate on this highly complex and personal issue. This is certainly a matter on which everyone's point of view deserves the utmost respect and consideration. All justice committee members have unquestionably demonstrated these qualities in the course of their work.

Allow me to highlight some areas where the work of the justice committee has been particularly helpful.

Many stakeholders who appeared before the committee, in particular organizations representing medical professionals, expressed a great deal of concern about conscience protections for medical providers. Bill C-14, as a criminal law measure, would create exemptions from conduct that would otherwise be criminal and therefore would not compel anyone to provide medical assistance in dying in any way. However, some stakeholders urged the committee to add a specific clause that would clearly reflect, for greater certainty, their conscience rights as protected under the charter.

On the other hand, other stakeholders such as the Barreau du Québec and Quebec health lawyer Jean-Pierre Ménard affirmed the position previously expressed by the Minister of Justice that the conscience rights of health care providers were matters that fall under the purview of the provinces and territories as well as under the responsibility of medical regulatory bodies, which themselves are provincially regulated.

I am pleased to say that the justice committee carefully listened to submissions from all sides of the debate and that a motion was tabled to address this significant concern within the limits of our constitutional framework. Bill C-14 was amended in order to give a greater sense of comfort to medical professionals that nothing in Bill C-14 would compel individuals to act against their deeply held beliefs.

The justice committee should also be commended for working in a non-partisan way to make improvements to the proposed legislation. For instance, the committee amended the bill to clarify that where persons signed a written request on behalf of a patient who cannot write, they could only do so at the patient's express direction. The committee members also amended the bill to clarify that for the sake of professionals who provided counselling services, giving someone information about medical assistance in dying would not be criminally prohibited.

Although these amendments and several others do not fundamentally change the scope of Bill C-14, they should increase the level of comfort for Canadians, including health care providers and other professionals who may be involved. I applaud the committee for all of its efforts.

We have heard countless times how challenging the issue of medical assistance in dying is and how Canadians and organizations hold divergent views that are informed by strongly held beliefs. I think we can all agree that this tension was most apparent during the debate over who should be eligible for medical assistance in dying in our country.

Just as it was the case before the Special Joint Committee on Physician-Assisted Dying, the justice committee also heard a wide range of views on eligibility and on what was required to respond to the Carter ruling.

At one end of the spectrum, some stakeholders continue to oppose legalization of any form of medical assistance in dying, as is still the case in most countries around the world, or they propose that it be significantly narrowed.

At the other end of the spectrum, some argue that Bill C-14 does not go far enough and urge Parliament to adopt one of the broadest regimes in the world, similar to ones that exist in only three European countries. They maintain that the eligibility criteria in Bill C-14 are too narrow and they should also include mature minors, people suffering solely from a mental illness, and those who have lost their capacity to consent to die, but who have made an advance request for medical assistance in dying.

Somewhere in the middle of that spectrum, though, lies a group of stakeholders who have expressed strong support for Bill C-14 and who recognize that the bill's cautious and balanced approach is imminently justifiable, including the commitment to explore broader eligibility issues in the near future.

Among that group is the Canadian Medical Association, which speaks on behalf of 83,000 physicians across Canada and which supports the adoption of Bill C-14 as it was drafted, and without amendments.

In contrast with those who argue that the Supreme Court's language of grievous and irremediable medical condition is clear and preferable, the Canadian Medical Association takes quite a different position. It says that the criteria in Bill C-14, including the requirement that death be reasonably foreseeable, provides sufficient direction to physicians and is a great improvement from the court's language, which it considers to be vague and unworkable from a medical standpoint.

Similarly, the Canadian Nurses Association, a federation of 11 provincial and territorial nursing associations and colleges, representing nearly 139,000 registered nurses across Canada, has said publicly that its priority is having the bill passed before the June 6 deadline expires. Further, its CEO, Anne Sutherland Boal, stated just yesterday that the successful passing of the bill would be both compassionate and protective to patients, families, and care providers, while emphasizing that the legislative safeguards in the bill would work to protect the most vulnerable Canadians.

Although lawyers and legal academics continue to argue with each other over whether or not the court's language, or the language in Bill C-14, provides sufficient clarity, how can we as parliamentarians discount the views of medical practitioners? The Supreme Court expressed confidence in Canada's physicians to respond to Canadians who wished to access medical assistance in dying, and that confidence is well-placed.

We as parliamentarians must also have confidence in medical practitioners. They will be the ones facing these difficult life and death decisions with their patients and assessing their eligibility. For them, it is not a philosophical or theoretical exercise. They will be applying the very measures in Bill C-14 in their daily practice. Their views must be given significant weight.

National disability rights organizations and others have also supported the approach to eligibility proposed by Bill C-14 as a meaningful safeguard to protect individuals who might be vulnerable in the framework of a medical assistance in dying regime, as a result of societal discrimination, loneliness, or lack of social supports, for example.

On the question of safeguards, the same dynamic has been at play. Some stakeholders expressed support for the measures proposed in Bill C-14, while at the same time seeking to put in place additional safeguards to protect the vulnerable, such as prior judicial authorization. Others, wanting to facilitate broader access, have sought to remove some safeguards, such as the reflection period.

While we respect those who feel that the proposed safeguards are either inadequate or overly burdensome, I believe the safeguards in Bill C-14, taken together, are consistent with many of those found in regimes around the world. Just as the court in Carter was persuaded that the risks to vulnerable Canadians could be adequately managed under a regime with robust safeguards, I am confident the safeguards in Bill C-14 would guard against abuse and error.

Last, I would like to remind all members that Bill C-14, or the provision of medically assisted dying, is not intended to be, or to become, the response to all forms of intolerable suffering. The bill is a thoughtful response to Carter, which recognized the autonomy of those suffering on a path toward death to die peacefully at the time of their choosing and therefore to avoid a prolonged, painful, and undignified death, or one that is inconsistent with their values. Bill C-14 acknowledges the autonomy of such persons to make important end-of-life health care decisions, while also balancing the equally important societal objectives of affirming the value of the lives of all Canadians, preventing suicide, and protecting the most vulnerable in our society.

I believe this legislation respects all interests at stake, and is one of which Canadians can be proud. For all these reasons, I urge all members of the House to support Bill C-14.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Madam Speaker, my colleague made the statement that there were very few countries in the world that had access to physician-assisted suicide. If we were to study this, we would find that less than 3% of the world's population currently lives in jurisdictions that have access to physician-assisted suicide. It is important that Canadians understand that. We are among a very small group of countries that are giving access to it.

I want to ask my colleague a question related to a question I posed to the member for Saanich—Gulf Islands earlier and her comments with respect to the possible rupture in the patient-doctor trust relationship. It is important that institutions, should they wish not to participate, have that freedom, if for no other reason than to give patients entering those institutions the assurance that they will not be vulnerable.

I wonder if my colleague would comment on the need to have clear conscience protections for institutions that are providing health care.

[Sean Casey, Liberal, Charlottetown, PE]

Madam Speaker, I have two responses.

The first is that this is legislation to amend the Criminal Code. There is absolutely nothing in the legislation that compels any institution or any individual to do anything.

Also, the regulation of health care institutions and the delivery of health care is one that is squarely within the domain of the provinces. We heard this in testimony. The federal government is quite prepared to show leadership in dealing with the provinces. The matter of conscience rights is now contained in the bill and the preamble in an appropriate way.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Madam Speaker, there has been a lot of debate about the position of various doctors in the country. It has come to my attention that Dr. Peter Zalan, president of medical staff at Health Sciences North in northern Ontario, has stated that he is very disappointed with the bill. He has said:

For me, Bill C-14 is a disappointment. It proposes to keep illegal the resolution of intolerable suffering that is not at the end of life. It will make it impossible to deal with dementia when the afflicted person is still competent. If ever there is a need for Medical Assistance in Dying, it is for conditions like dementia and intolerable suffering when the end of life is not in sight.

I wonder if the member could speak to the fact that, like Dr. Zalan, a number of medical practitioners are saying that the way the bill is being presented, which lacks the clarity in the ruling by the Supreme Court of Canada, will make life more difficult for physicians when making determinations of when to assist their patients.

[Sean Casey, Liberal, Charlottetown, PE]

Madam Speaker, there is no question that not all individual members in the Canadian Medical Association are of one voice. The voice of the medical profession has spoken clearly and loudly in support of the legislation. Indeed, there are individual members and groups of doctors who do not feel the same way, one of whom was referred to by the hon. member.

The other point that I would add is this. If we are left without legislation on June 6, it is doctors like the one the hon. member quoted who will be left without a law, without eligibility criteria, and without the present system of applying to a court for an exemption, something that will only exist until June 6. There will be a great deal of uncertainty if no law is passed. That I think will leave doctors in a situation where they will be extremely reluctant to accede to a patient's request for medical assistance in dying without the certainty that is provided in Bill C-14, as flawed as it may be.