moved that Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), be read the third time and passed.
Mr. Speaker, I want to begin today by acknowledging the contributions of all members of the House, in particular, the members of the Standing Committee on Justice and Human Rights, for how they have approached our debate on Bill C-14.
It is clear that members from all parties have engaged closely with their constituents, members of other parties, and their own experiences to make thoughtful and genuine contributions to our country's conversation on medical assistance in dying. This is one of the most important issues that this Parliament will address.
Bill C-14 represents the government's policy choice to address medical assistance in dying, a choice that is fully informed by consultations with Canadians and experts and takes into account all the interests and values surrounding this matter.
When the Carter decision came down in February 2015, one debate ended and another began. It was no longer a question of whether Canada would permit medical assistance in dying, but rather it was about how our country would do it.
Bill C-14 would create a statutory framework for medical assistance in dying that considers the perspectives of those who may wish to access it; those who are concerned about its consequences, including vulnerable persons who could be put at risk by the legalization of this practice; and those who may be asked to provide the assistance.
While the Carter decision told us that an absolute prohibition in the former law went too far, it did not tell us how medical assistance in dying should be implemented. The Supreme Court of Canada acknowledged that the issue “involves complex issues of social policy and a number of competing societal values”. The court stated that it:
emphasized that there may be a number of possible solutions to a particular social problem, and suggested that a “complex regulatory response” to a social ill will garner a high degree of deference.
The challenge facing Parliament is about setting new boundaries. Who should be eligible for medical assistance in dying; what safeguards should be required; how will it be monitored; and what issues require more study?
A proposed law that answers these questions must comply with the charter, but that does not require replicating the Carter decision. The Supreme Court of Canada has recognized that the relationship between the courts and Parliament should be one of dialogue. Just as Parliament must respect the court's ruling, so too must the court respect Parliament's determination of how to craft a statutory scheme in response to the court's judgment.
It is helpful to know how this dialogue has played out in previous instances. For example, in R. v. O'Connor, a 1995 charter challenge in a sexual assault case, the Supreme Court mandated the disclosure of therapeutic records in the Crown's possession and set out a common law procedure for the production of these records.
In response, Parliament enacted a statutory disclosure regime that differed in significant ways from the court's approach. The court upheld the constitutionality of that statutory regime, noting that it could not be presumed, just because Parliament's scheme looked different from what the court had envisioned, that it was unconstitutional.
Instead, there is this dialogue between the legislative branch and the courts. The court can provide the general parameters for a response, but it is for Parliament to craft the regime. Details of that regime matter because they necessarily engage fundamental choices of our rights and values and reconciling the tensions that sometimes exist between them.
In developing a response to the Carter decision, the government was called on to simultaneously promote autonomy, protect the vulnerable, affirm life, prevent suicide, support persons with disabilities, respect freedom of conscience, and fully consider many other valuable interests. As we went about this, we remained mindful of our constitutional framework and the divided jurisdiction between Parliament and the provinces and territories.
In weighing these values and making these policy choices, we were not alone. In the past number of months the national conversation on medical assistance in dying has been rich and fulsome, and no doubt it will continue.
Following the introduction of Bill C-14, the relevant standing committees of Parliament, including the justice and human rights committee and the Senate legal and constitutional affairs committee, which conducted the pre-study of the bill, have heard diverse perspectives from stakeholders and experts on all aspects of medical assistance in dying. Bill C-14 strikes a balance regarding eligibility and safeguards, as well as setting out what the federal law should do and what should be left to the provinces and territories to regulate.
Not everyone agrees with these policy choices. Still, I am confident that the decisions fall squarely within the range of alternatives that are legally open to Parliament to adopt. It would have been easy for the government to cut and paste the language from the court's decision into a new federal statute, but such an approach would have meant ignoring all the consultations and evidence that I have just referenced. It would also have fallen far short of developing a complex regulatory regime to balance competing interests, which the court said was the task of Parliament to craft and not the courts.
That evidence, presented over the past year, confirms that medical assistance in dying may pose risks to the vulnerable, even in circumstances where there is a general consensus that the person should be eligible for the procedure. That is why the bill provides for significant procedural safeguards, even when all of the eligibility criteria are met. This is why the bill would also put in place the necessary legal framework to monitor how medical assistance in dying is implemented in Canada.
In terms of eligibility, the policy choice made by the government was to focus on persons who are in an advanced state of irreversible decline and whose natural deaths have become reasonably foreseeable.
Recall that medical assistance in dying is exceptional because, from a criminal law perspective, it is a situation where one person actively and knowingly participates in the death of another. We criminalize and strongly condemn this conduct in all other circumstances. The only place in our criminal law where this conduct is justified is in self-defence, where individuals are permitted to take a life but only in order to save their own life or someone else's. While medical assistance in dying has medical and health law aspects to it, we cannot lose sight of this dimension either, because it is the criminal law power that is the primary source of Parliament's jurisdiction to address this issue, and it was the criminal law that, before the Carter decision, stood in the way of medical assistance in dying.
Having given careful consideration to the risks that may be posed when anyone, even a physician or nurse practitioner, is permitted to end another person's life, the balance reflected in Bill C-14 is that medical assistance in dying should be a choice for Canadians about how they die, so that they may have access to a peaceful passing. The bill would create a complex regulatory regime to respect this choice and ensure it is exercised in a voluntary and fully informed manner. Equally, the criteria ensure that, for Canadians who are not declining toward death, the focus of medicine remains on improving life, not ending it.
We also recognize that there are those who believe that the law should permit access to medical assistance in dying in other situations. The government heard these concerns loudly and clearly. The Standing Committee on Justice and Human Rights amended the bill to ensure that one or more independent reviews be initiated within six months of the bill receiving royal assent to further examine issues around the eligibility for mature minors, advance requests, and requests where a mental illness is the sole underlying medical condition.
We welcome this amendment and want to emphasize that we will remain open-minded to the evidence that these reviews gather and as Canadian data begins to be generated on how medical assistance in dying is actually working.
The decision to study these three issues further is supported by people who work with patients day in and day out in these three areas, who have been some of the most prominent voices calling for Parliament to proceed with caution.
With respect to mature minors, the Canadian Paediatric Society, represented by Dawn Davies, testified before the Senate committee that there “is simply not enough information to reach an enlightened decision” on this matter and that “It is appropriate that the first iteration of legislation on physician-assisted death does not include...minors”.
She also stated that there have not been sufficient consultations on this issue. The usual capacity and assessment processes, which Bill C-14 supports as appropriate for adults, may not be the right approach for mature minors. We need to consider this issue further.
Advance requests is another area where additional evidence is needed. We have heard many times over the past year that advance requests are likely to be sought in circumstances where persons are suffering from diseases such as Alzheimer's or dementia, but even the Alzheimer Society of Canada has stated in its public position paper that medical assistance in dying should only be possible when a person is competent at the time the assistance is administered. It says that advance requests not only pose risks to vulnerable patients, but they could also contribute to false stereotypes, undermining its message that it is possible to live well with this disease. Further study on this issue is the right policy.
On mental illness as a sole condition motivating a request for assisted dying, it is not surprising that reputable individuals and organizations, including the Centre for Addiction and Mental Health and the Mental Health Commission of Canada, support further study before legislating in this area. Moving forward in this way does not deny the suffering that these illnesses can cause. Rather, it ensures that we get it right and protect some of the most vulnerable and stigmatized persons in our society. For these reasons, I believe that Bill C-14 represents the right policy choices to answer the difficult questions the Supreme Court of Canada left for us as parliamentarians to resolve for 36 million Canadians.
I will now turn to the legal considerations, which play a crucial role in this seminal piece of legislation.
A consistent area of discussion has been around whether Bill C-14 is constitutional. As the Minister of Justice and Attorney General of Canada, I am of the firm opinion that the bill is consistent with the charter and is a justifiable response to the Carter decision.
Bill C-14's eligibility criteria directly respond to the Carter decision. They clarify the intended scope of eligibility, acknowledging the submission of the Canadian Medical Association, which represents 83,000 physicians who will, with nurse practitioners, be responsible for implementing and applying this law in their daily practice. This organization has stated that the language in the bill is a significant improvement over what it views, from a medical perspective, as the court's unworkable term “grievous and irremediable”.
What was the scope of the Carter decision? I appreciate that there are many differing interpretations of the decision, and I acknowledge that the Alberta Court of Appeal recently read Carter in a broad way, while some judges in the Superior Court of Ontario have read it more narrowly. I believe that the Carter decision was about the factual circumstances of that case. At the end of the day, Bill C-14 will be measured against the charter as a whole and not the Carter case. As the Alberta Court of Appeal recognized, “the interpretation and constitutionality of eventual legislation should obviously wait until the legislation has been enacted”.
Bill C-14 addresses both dimensions of section 7 of the charter, respect for autonomy and respect for life. The bill would strike a new balance between these interests through a comprehensive regulatory regime, which would receive deference from the courts. The proposed law would respect individual autonomy for persons who choose medical assistance in dying, but would do so in a careful manner that preserves other crucial objectives: promoting suicide prevention, preventing social stigma of life with a disability, and protecting society's most vulnerable persons from a risk of premature involuntary death.
While Bill C-14 requires that an eligible person be on a trajectory toward death, the flexibility purposefully built into the bill's criteria would allow medical practitioners to respond to a wide variety of medical circumstances, not just predictable diseases that are subject to fixed prognoses of life left to live.
Indeed, unlike some U.S. state regimes that require a specific prognosis, Bill C-14 does not require a strict relationship between the medical condition and the cause of the person's reasonably foreseeable death.
I do not agree with those who say that the Carter decision means that Parliament is constitutionally mandated to enact one of, if not the broadest, assisted dying regimes in the world, and that Parliament has little scope to consider other societal interests aside from autonomy. The court acknowledged that medically assisted death involved complex issues of social policy in a number of competing interests. In matters of this nature, the charter analysis takes into account the fact that there is no single manifestly correct balance of competing interests that are engaged. Deference will be shown, provided that Parliament's solution falls within the range of reasonable alternatives.
Bill C-14 is reasonable. It would provide people who are in a path towards death a choice that would respect their wish to die with dignity. Equally, it would limit medical assistance in dying to persons in these types of circumstances in order to prevent the normalization of suicide, protect vulnerable persons who were disproportionately at risk of inducement to suicide, and affirm the equal value of every person's life.
This balancing of interests addresses the inherent risks associated with permitting medical assistance in dying, and represents what the trial judge in Carter described as a “carefully- designed system imposing stringent limits that were scrupulously monitored and enforced”. Such a system is necessary because the suffering that can lead someone to request assisted dying does not just come from the condition; it also comes from how our society too often treats people with such conditions.
Under an approach where any serious medical condition is eligible, the law would be saying that an assisted death could be an acceptable treatment for a soldier with post traumatic stress disorder, a young person who suffered a spinal cord injury in an accident, or a survivor whose mind was haunted by memories of sexual abuse.
These are difficult but necessary situations to talk about, because cases like these are the unavoidable consequence of an assisted dying law where the only limit on eligibility is an individual's subjective experience of suffering.
As both the justice and human rights committee and the senate committee heard from several witnesses, the risk to vulnerable people, as well the crucial objectives of suicide prevention and affirming the value of the lives of all Canadians could be greatly increased unless eligibility was limited to persons who were approaching the end of their lives.
As I said, when Bill C-14 was introduced, assisted dying is a matter that touches us all and challenges us all. Divergent views on the bill remain, but we have a responsibility to act for all Canadians. The interim court approval process ends on June 6. If there is no legislation in place at that time, medical assistance in dying will lack a legal framework outside of the province of Quebec.
There is even uncertainty as to whether the court's remedy in Carter, if it came into force on June 6 in place of a statutory regime, would have the legal effect of completely striking down the existing criminal law that prohibits consensual killings and the aiding of suicides outside of an assisted dying context.
While most medical regulators have published interim guidelines, there would be no mandatory or consistent national safeguards. It could be possible, for example, for a physician to end a mature minor's life, depending on the province. Different jurisdictions require different numbers of witnesses, and some provide no waiting period at all.
Uncertainty around Carter parameters would persist and likely lead to inconsistent results in who would be found to be eligible, even between medical practitioners in the same jurisdictions.
We have a choice: To have a statutory framework in place with all of the national-level safeguards and protections that I have described, or having none. Bill C-14 reflects the kind of society we should aspire to be, one that respects individual autonomy and one that affirms that the lives of all Canadians have inherent value and are equally entitled to the protection of the law.
I call on all members of the House to support Bill C-14.