Bill C-7 (Historical)

An Act to amend the Criminal Code (medical assistance in dying)

This enactment amends the Criminal Code to, among other things,
(a) repeal the provision that requires a person’s natural death be reasonably foreseeable in order for them to be eligible for medical assistance in dying;
(b) specify that persons whose sole underlying medical condition is a mental illness are not eligible for medical assistance in dying;
(c) create two sets of safeguards that must be respected before medical assistance in dying may be provided to a person, the application of which depends on whether the person’s natural death is reasonably foreseeable;
(d) permit medical assistance in dying to be provided to a person who has been found eligible to receive it, whose natural death is reasonably foreseeable and who has lost the capacity to consent before medical assistance in dying is provided, on the basis of a prior agreement they entered into with the medical practitioner or nurse practitioner; and
(e) permit medical assistance in dying to be provided to a person who has lost the capacity to consent to it as a result of the self-administration of a substance that was provided to them under the provisions governing medical assistance in dying in order to cause their own death.

Criminal Code

[Pat Kelly, Conservative, Calgary Rocky Ridge, AB]

Mr. Speaker, the hon. member for Bow River makes a great point, and I did touch on the review in my speech.

The committee hearing on the bill is not a substitute for the fulsome review that was promised in Bill C-14. I am concerned about the rushed timeline, and I identified in my remarks that for the bill to be fully supported at third reading, things must be done properly. It has to be drafted and worded carefully and thoughtfully, following a proper and robust consultation by the appropriate parliamentary committee.

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

Mr. Speaker, it is interesting that the last question has brought us to the issue of urgency and why this is pressing.

We had this bill before us in the spring, before we adjourned and before COVID-19 took over our parliamentary process. We now have the process, for which I am grateful to all parties, that allows us to debate controversial legislation, to have votes at a distance, to respect the threat of COVID-19 and to protect public health.

When debating this bill before we adjourned, I was getting emails in the House from one of my best friends, who was dying of ALS. She asked me if there was any chance we would make changes to the bill for advance directives in time to help her. I deeply regret that we were unable to get this bill passed last spring, when my friend, Angela Rickman, could have benefited from access to medical assistance in dying. She died in a situation of suffering that would have been her wish to avoid. Now, as we debate this, a member of my own family is wondering whether we can get this bill through quickly enough so that they are not put in the impossible situation that Audrey Parker found herself in. I will reflect further on Audrey Parker later.

There is urgency, whether driven by courts or by compassion. We know as legislators, as our friend from Beaches—East York just commented a few speeches ago, that we have, at this point, repeatedly passed legislation that did not meet the judicial thresholds and frameworks that have been set before us in order to ensure that the legislation we pass on medical assistance in dying meets previous court decisions. I know everybody is deeply affected by their own constituents, their own personal experiences and their frameworks of religious traditions or lack thereof, but I hope we all come to this with open hearts, recognizing that this is a crucially important issue, one that I hope our Parliament will handle better than we have in the past. Let us make sure we pass legislation that does meet the constitutional requirements that have been put before us, if for no other reason than making sure we do not have to continually return to improve our legislation. Ensuring it meets the bar that was set for us by our courts has to be paramount.

I happen to come from a constituency where, overwhelmingly, constituents have wanted to see medical assistance in dying legalized for many years. My colleagues in the chamber and watching remotely will remember the name Sue Rodriguez. Sue Rodriguez was a resident in my constituency, in North Saanich. Her first effort, which was, of course, the case she brought forward, was the first time the Supreme Court of Canada ruled, by a very narrow margin, that medical assistance in dying would not be allowed in Canada. That was back in 1993, and it was by a vote of five to four that the Supreme Court denied her final wish. She was able to access illegal assistance from a doctor who remains unknown, but God bless him, and she achieved medical assistance in her own death in February 1994. It was not a situation we would want any of our loved ones to find themselves in, unable to find the help legally and choosing to find someone willing to help otherwise.

The next set of cases, of course, bring us to more recent cases, the ones we talk about in Parliament today, and particularly the one that brought us to Bill C-14 in the previous Parliament, brought forward after the 2015 election. The names of the ministers who were involved have been referenced several times: the hon. member for Vancouver Granville and, of course, the former minister of health, Jane Philpott.

I lamented then, in this place, that the Carter decision of the Supreme Court of Canada was not being respected fully in the legislation that we were debating. I was able, in clause by clause consideration at committee, to bring forward amendments, which were rejected there, to do away with the requirement that someone be capable and competent on the day of the procedure to confirm their desire for medical assistance in dying.

It is that requirement that drove Audrey Parker to have to get medical assistance in dying before the moment she really wanted to, for fear that she would be unable to provide that consent through the vagaries of the disease or the pain-killing drugs. We know Audrey Parker's story. It was related to us today earlier by the current member for Markham—Stouffville and by the member for Dartmouth—Cole Harbour, who knows the Audrey Parker story well.

She died November 1, 2018, nearly two years ago, saying that this Parliament had let her down through the requirement that she be competent the day of the procedure to confirm that it was, indeed, her wish. This was impractical. Even as we worked in Parliament on Bill C-14, we knew from the language in the Carter decision of the Supreme Court of Canada that this was a violation of patients' constitutional rights.

When the bill got to the Senate, I was very pleased that the amendments I put forward in clause by clause, which had been rejected in the House, were taken up and approved by the Senate. However, as we will recall, when the bill came back from the Senate, the government rejected the amendments to deal with ensuring that people would have access to medical assistance in dying and to deny patients access to an advance directive. Predictably, here we are.

As many of us argued in Parliament in the first round of debates on Bill C-14 on medical assistance in dying, we were not, as a Parliament, passing legislation that was likely to survive a court challenge. There was not much prescience or crystal ball-gazing to know it. We knew it if we read our legislation and compared it to the reasoning in the Carter decision. Here we are now with a new decision, the Truchon decision from the Quebec Superior Court, and we are going back to amend the legislation.

What we are doing, of course, is making sure that people in a situation where they do face a terminal illness and their doctors know that they cannot survive this illness will be able to access an advance directive. Again this was the Carter decision. The Carter decision was full square about facing irremediable suffering and accessing medical assistance in dying. Clearly in this legislation, we have said mental illness is not going to be covered, that mental health issues will not be considered an illness that can be considered irremediable in the context of this legislation. We will very likely have to come back and revisit that.

Certainly, as this legislation goes forward from this vote at second reading to committee, I hope we will find a way to amend the legislation to remove the 90-day timeline around assessing someone's irremediable state of suffering. I support what the member for Beaches—East York has said on this. It does not appear at all to be a humane decision or within what the courts have already told us to insist on that 90-day period.

There are some things that have been argued today in this House that I want to draw attention to because I would hate for Canadians to think that this bill was as cavalier as some would have us believe. Some have said that this bill would allow for “death on demand”. That was one phrase used by one hon. colleague. It's important to know that the bill says quite the contrary.

One of my friends in the House said this bill does not make any effort to allow someone to change their mind the day of the procedure. I urge colleagues to look at subclause (3.1)(d). It is very clear. They should also look at subclauses (3.2), (3.4) and (3.5). Throughout the bill, there are many points at which it is very clear that people have the ability to say, and doctors have the requirement to verify that people have the ability, even on an advance directive, to subsequently change their minds. That is a very clear set of provisions in the legislation, as I said, particularly under subclause (3). To clarify again, in subclause (3.1)(d), it is very clear that one has to ensure that people have been informed that they may, at any time and in any manner, withdraw their request. That is the context throughout this bill.

I know my time is at an end. I just want to say that I support this bill and I hope we pass it as quickly as possible. People are suffering and they want us to act.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Mr. Speaker, it is important for us to recognize that back in 2015, shortly after the election, one of the challenges we had was to come up with new legislation dealing with medical assistance in dying. There was a general feeling that, yes, here we are at this particular point, but we will have to make some changes. Today, that is exactly what we are doing, but it is primarily being driven because of a court decision in the province of Quebec.

Could the member provide further thoughts in regard to the dropping of the 10-day waiting period for people who are near death?

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

Mr. Speaker, the legislation is clear that nothing happens in the blink of an eye. A lot of consideration must be given to the situation of each individual patient. The medical experts engaged must have specific knowledge of whatever particular irremediable condition is being raised. The question of eliminating a 10-day waiting period is not to make it on demand. There are still very significant stipulations and requirements that must be assessed and considered in advance of accepting that it is a case for medical assistance in dying.

[Brad Vis, Conservative, Mission—Matsqui—Fraser Canyon, BC]

Mr. Speaker, like a lot of members of Parliament, I consulted my constituents extensively on Bill C-7. One area of commonality everyone seemed to share was that the Government of Canada, we collectively as legislators, can do more for people to have more options when they reach a period in their life when death is foreseeable.

What would the member say about providing more supports for palliative care to give people that option? In many communities across Canada, we know that option just is not there.

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

Mr. Speaker, it is not either-or, but it is absolutely the case that we need to do far more. The provision of health care is provincial, but the federal government has responsibilities under the Canada Health Act and there is, of course, federal-provincial cost-sharing around health care.

We should make it a priority that we improve access to palliative care across Canada. I completely agree. I resist when I hear some of my hon. colleagues suggesting that the government has a preference for pushing people toward medical assistance in dying. That is not the case. That needs to be understood. We need both.

[Mario Simard, Bloc, Jonquière, QC]

Mr. Speaker, I want to come back to what was just said.

I do not know if my colleague agrees with me that there is a fundamental difference between palliative care and medical assistance in dying. Palliative care is provided through the health care system. If we want better palliative care, I think that the best way to get there is to provide the health care funding that the provinces want. We know that in the past, both the Liberals and the Conservatives slashed health care funding.

Does my colleague agree that if we want better palliative care, then we need better health care funding?

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

Mr. Speaker, I completely agree with my colleague from the Bloc Québécois. We must increase the level of service in the public health care system while also amending the Criminal Code to improve access to medical assistance in dying.

[Richard Cannings, NDP, South Okanagan—West Kootenay, BC]

Mr. Speaker, I am glad my colleague brought up the history of Bill C-14 in the previous Parliament and the concerns that she and all of us in the NDP share. This bill did not match the findings of the court decision that brought us to deal with that.

The member did mention the 90-day period and I am wondering if she can expand on that. What does she think this is for? People are in intolerable suffering and asking them to wait another three months seems to be not right.

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

Mr. Speaker, in my analysis of Bill C-14, which may be right or wrong, it seemed to me the country's doctors were in a discussion and dispute with the country's lawyers. The lawyers were looking at it from the point of view of what the courts require of us and the doctors were saying they were not sure how they wanted to administer it. At that point, I think we let down individual human beings across Canada. I do not think we should do it again. I think the 90-day period is an arbitrary bureaucratic response to trying to find the balance points between those competing interests. What we should always be thinking about and what should be paramount is respecting the rights of individual Canadians at the point they are in irremediable suffering as confirmed by their physicians.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, this is the second time I have had the opportunity to speak to this legislation, Bill C-7, an act to amend the Criminal Code, medical assistance in dying, due to the Liberals proroguing Parliament. Unfortunately, my earlier concerns, such as the legislation going above and beyond the Superior Court of Quebec decision, have not been remedied. I was also on the justice committee when this was being dealt with before.

I have long believed the place for drafting legislation is in Parliament so I will not criticize the government for tabling this legislation. My critique of the government is it is using the Superior Court of Quebec decision to make other amendments to Bill C-14 instead of using the automatic five-year review to do so, which was spoken about here earlier.

No one better understands the reasons why this legislation is needed to respond to the Quebec Superior Court decision than the current Liberal Minister of Justice. In the previous Parliament, he voted against his own government's legislation because he foresaw that a court would strike down the previous provisions as he felt they were too rigid.

The member for Vancouver Granville, the then former minister of justice who drafted Bill C-14 at the time, was aware of this criticism and spoke directly to that issue in her opening remarks at the justice committee back in May 2016. She said, “In terms of eligibility, I am aware of the requirements that a person's natural death be 'reasonably foreseeable' has received some attention, including in terms of how it relates to the Carter decision. I would like to address these concerns.”

She went on to say that, “A person can be approaching a natural death based on medical circumstances that are not directly related to a serious, incurable illness. As well, eligibility does not depend on a person having a given amount of time remaining, such as a certain number of weeks or months to live, as in the United States.”

It was clear from her remarks she felt Bill C-14, the predecessor to this bill, struck the right balance.

As we are all too aware, there are always unique situations where the law cannot accurately predict every scenario. The former minister of justice understood the complexities and challenges the families, doctors and patients were going to face with this new MAID regime. She went to say at committee:

Reasonable foreseeability of death is ultimately a medical decision, and not a legal one, to be made by taking into account all of the person's medical circumstances, including the types and number of medical conditions, frailty, age, etc..... By defining the term “grievous and irremediable medical condition”, the bill would ensure that all competent adults who are in an irreversible decline while on a path toward their death would be able to choose a peaceful, medically assisted death, whether or not they suffer from a fatal or terminal condition.

The word that has caused considerable consternation with both individuals seeking MAID and their doctors is “competent”. As with many illnesses, the drugs needed to either treat or provide comfort can impede one's competencies. This will be an important issue as it relates to the legislation as the government is creating a process for advance requests for persons newly diagnosed with a condition that could affect their decision-making capacity in the future.

As Jane Philpott, the former health minister, said when drafting the original MAID legislation in 2016:

We faced similar challenges in considering the issue of advance directives. The Supreme Court did not deal with this issue in Carter, and the views of Canadians and stakeholders, as you know, are divided. I understand the hardship for those Canadians who fear that after being diagnosed with a disease such as dementia they may experience a decline that could compromise their dignity. This has led to pleas to allow people to make requests for medical assistance in dying well in advance of the time when the person is no longer competent to make or reaffirm a desire to accelerate their own death.

While I agree, I also agree that once this legislation is referred to the justice committee it would be prudent to revisit this issue with medical professionals who are experts on Alzheimer's and dementia-related illnesses.

We must bring in families and those who understand these types of illnesses so we can think through as many scenarios as possible. I would prefer Parliament get this right rather than a court striking down the legislation in the future as it could lead to the situation we find ourselves in today.

The other issue I want to touch on stems from the Truchon decision. The Superior Court of Quebec struck down Bill C-14's provision that death had to be reasonably foreseeable. One could argue the government should have appealed the superior court decision, as we have spoken about in other speeches and questions tonight. It would not be an unusual step as the Government of Canada appeals all sorts of lower court decisions.

While I was not expected to be consulted on the government's response to the Truchon case, there has been very little public discussion from the Liberals about the likelihood of prevailing at the Supreme Court. My only question would be this. If the government did appeal to the Supreme Court, could it have gotten a more limited and narrow ruling on the implications of deleting the reasonably foreseeable clause?

By completely removing this clause, even with a new set of safeguards, it will expand the list of people who might be eligible for MAID rather than just dealing with the specific concern raised in the Truchon case. The very reason the reasonably foreseeable clause was put in the original legislation was that the former ministers wanted a balance between personal autonomy and the protection of the vulnerable.

Obviously the Superior Court of Quebec did not approve of the balance the Liberals sought in Bill C-14. However, in response, we must be mindful of the unintended consequences of this legislation. I know every member of Parliament has been contacted by their constituents about the implications of removing reasonably foreseeable criteria.

There are varying degrees of concern, ranging from moral and ethical grounds to concerns about the role of the state in sanctioning MAID for individuals who are doing so out of the lack of proper palliative care services. The government has decided in this bill to continue to allow doctors and individuals to decide what constitutes a grievous and irremediable medical condition rather than provide a prescriptive list of eligibility criteria. As someone who believes in individual rights and in the judgment of medical experts, I agree with this approach. My only concern is that we have left it too vague.

The government could have eliminated the reasonably foreseeable clause and replaced the original criteria with something that would be deemed constitutional rather than what we have before us today. There are those with apprehensions that proceeding this way will lead to situations where individuals will seek MAID and even be able to proceed for reasons no one in Parliament intended it to. I, for one, would like to see the law as written and intended by the drafters be carried out accordingly.

That is one of my concerns that must be answered fully before we pass the legislation and send it to the Senate. While the legislation explicitly states that having a mental illness is not a serious and incurable illness, disease or disability, we must be prepared to withstand that court challenge.

To refer back to the 2016 debate on MAID, Jane Philpott, at the justice committee, said, “There is no denying that mental illness can cause profound suffering. However, illnesses such as chronic depression, cognitive disorders and schizophrenia raise particular concerns with respect to the matter of informed decision making.”

It goes without saying that there are deep divisions on the overall issue of MAID. What we find in this bill goes much further than deleting and replacing the phrase “reasonably foreseeable” in order to be compliant with the recent court decision. For example, the government is using safeguards which, I might add, is the actual language found within the presentation with which department officials briefed MPs. As it stands, patients must make a written request for MAID that is witnessed by two independent witnesses. In Bill C-7, this would be changed to one independent witness. I believe it is incumbent on the government to justify this change and outline the rationale why it needed to be amended.

Last, the government is also be removing the mandatory 10-day period after the written request is signed. Once again, this is a significant change that goes above and beyond what was required to be in compliance with the Superior Court of Quebec decision.

I have listened closely to the concerns of constituents about the bill, I support it going to committee for scrutiny and clarity. I want government to know I am committed to working with them constructively on the legislation.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the President of the Queen’s Privy Council for Canada and to the Leader of the Government in the House of Commons]

Mr. Speaker, I appreciate the comments and concerns expressed by the member opposite. On the reasonably foreseeable clause, because of the decision of the Superior Court of Quebec, we find ourselves having to bring forward this legislation. However, when we brought in Bill C-14, there was this expectation from parliamentarians that changes would be on the horizon, that the debate did not stop when the bill passed in June 2016. Ongoing dialogue had taken place and some of that dialogue is reflected equally in the feedback we received in January from some 300,000 Canadians.

Would the member not agree that if we are opening the door at this point in time, it only makes sense to look at other things that could be done to improve the legislation overall.

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, that is exactly what I was referring to when I said I would work collaboratively to try to improve this legislation. I know there were ongoing opportunities for change in Bill C-14 when it came up and went to committee.

My colleague has also forgotten that there was a five-year review which the government could have done a lot more with this past summer. We could have looked at a lot of the issues such as the 10-day issue versus the 90-day issue that my colleague from Saanich—Gulf Islands spoke of earlier. There is a real opportunity for improvements to be made in the bill and that review process, which was more or less forgotten, was one of those opportunities.

[Mario Simard, Bloc, Jonquière, QC]

Mr. Speaker, I thank my colleague for his speech.

I would also like to come back to the concept of reasonably foreseeable death. I think that this concept is problematic because, according to many health specialists, there is no foreseeable death for people who suffer from a degenerative disease. However, a person with a degenerative disease eventually loses the ability to provide informed consent. Consider, for example, people with Alzheimer's and related cognitive disorders.

Does my colleague not think that we should listen to the experts so we can improve the legislative process? The ones I heard from were of the opinion that this notion of reasonably foreseeable death is problematic. Does he agree with me?

[Larry Maguire, Conservative, Brandon—Souris, MB]

Mr. Speaker, I referred to that in my presentation. We need to get it to committee and bring experts forward, including doctors, people in the medical field and legal professions as well, so we get the legislation right and so it will withstand any kind of court challenges, as I referred to in my speech.

In answer to the member's question, I strongly believe we need to get it right this time, and we have the opportunity here to do that. It is a good opportunity for us to look at the types of circumstances around not just the 10-day area, but also on the other sections of foreseeable issues that were looked at in the bill.