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

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the hon. member opposite, the official opposition critic, for his work at the committee and his work today in the chamber.

As an observation, it seems some parties opposite feel we are either taking this too far, as expressed by the official opposition, or not taking it far enough, for example, by entertaining advance directives. Clearly the proposal before the House is one that is a middle approach, a prudent approach and one that is constitutionally compliant.

The points raised about the disability community are well taken. Those are important points, and the minister addressed these points about the importance of equality and supports for those with disabilities. That is exactly what the consultations revealed.

The member opposite used the phrase “without doing consultations”. The evidence shows, and this is available on the Department of Justice website, that we heard from 300,000 Canadians, had 125 experts and ten meetings around the country. Is that kind of consultative exercise exactly the type the member has asked us to undertake?

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I thank hon. parliamentary secretary for his work on the justice committee and on this file.

It is one thing to consult, but it is another thing to listen and hear what people are saying. We are hearing, loud and clear, from those in the disabilities community that this legislation, and these are their words, not mine, leads us to a society that says their disabilities are a fate worse than death. They want to see more protections in the legislation.

The hon. parliamentary secretary or the minister could pick up the phone and speak with Inclusion Canada or any one of the 70 signatories to that letter to hear about what they would like to see included in legislation safeguards to protect the most vulnerable in our society.

[Christine Normandin, Bloc, Saint-Jean, QC]

Mr. Speaker, I thank my colleague for his speech. I heard him mention that the government should have appealed the ruling and that, practically speaking, parliamentarians are somewhat muzzled by the courts.

He makes it sound like medical assistance in dying is going to be imposed on people with disabilities, whereas, in my view, this is more about a patient-centred approach. This is about giving patients options, not imposing anything.

I would like to hear my colleague's thoughts on what I just said. Did I misunderstand him? Does he not think it is more coercive to deny patients this right? Does he really think anyone wants to impose medical assistance in dying on people who could ultimately have a choice?

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, normally with a case like this, which comes from one province's courts, a case of national importance, the responsible thing to do for certainty, because we are a federation, would be to appeal the decision to a higher court and, indeed, on a decision this important that impacts our criminal law would be to appeal the decision to the Supreme Court of Canada.

We are listening to organizations that represent those with disabilities. They say that the failure to appeal the decision, the failure to pre-empt the study that was to take place this summer on assistance in dying legislation and the desire of the government to push something out right after there was one decision on it, pushing new legislation that goes beyond what the decision called for, is an affront to those persons with disabilities.

We are listening to them, and those are their words on this bill.

[Marc Dalton, Conservative, Pitt Meadows—Maple Ridge, BC]

Madam Speaker, this being Mental Health Week, could the member comment on the challenges people are facing in our nation right now? This year one in five are suffering from mental health issues.

What are the implications of this new legislation for people with mental health issues?

[Rob Moore, Conservative, Fundy Royal, NB]

Madam Speaker, I thank the hon. member for the reminder to all of us that it is Mental Health Week.

We are hearing from those who suffer from mental health issues, from those in the disability community and from a broad range of people. This legislation literally deals with life or death. As the member rightly pointed out, as we have seen over the last several months with the COVID-19 crisis, mental health issues have been brought to the forefront. We need to ensure that even—

[The Assistant Deputy Speaker (Mrs. Alexandra Mendès), Liberal, Alexandra Mendes]

Resuming debate, the hon. member for Sarnia—Lambton.

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

Madam Speaker, I am happy to have the opportunity to rise today to speak to Bill C-7. It is a very serious matter. As the member for Fundy Royal just mentioned, it is a matter of life and death. I was part of the debate on the original bill, Bill C-14, and I am familiar with a number of the issues with that bill.

It is very disturbing to me. I understand with the Quebec court decision the government had to make a response of some sort, but the previous bill required them to do a fulsome parliamentary review, which was supposed to take effect this past summer. The government refused to let Parliament sit this summer and do the kind of fulsome work that needed to be done.

It is actually quite irresponsible that when the government introduced Bill C-7, instead of just addressing what was time sensitive in responding to the Quebec decision, it went further and took actions without doing that fulsome review of how things have been going with Bill C-14 in the last number of years.

For those watching at home who are not familiar with Bill C-7, the bill would repeal the provision that requires a person's death to be reasonably foreseeable. In addition to that, it would specify that people whose sole underlying condition is mental illness are not eligible for medical assistance in dying. It would create two sets of safeguards that have to be respected before medical assistance in dying can be provided to a person, and it would permit medical assistance in dying to be provided to a person who has been found eligible to receive it and whose death is reasonably foreseeable but who has lost the capacity to consent before the medical assistance in dying is provided. That is sort of an advance consent, and we will talk a bit more about that.

Bill C-14 was not without some issues that were not addressed in the previous legislation and will probably be considered in the fulsome review. There was a question about whether minors should be able to receive medical assistance in dying. There was significant discussion about advance consent. A lot of Canadians were demanding it, and I will talk a bit about some of the considerations that may have kept the government from moving ahead at that time. There was discussion of those who are not mentally competent to give consent. There have been a number of speeches today mentioning people with dementia, for example. That is another area where there was work done by the Council of Canadian Academies, the CCA. It did fulsome reports on a number of these things, and I will talk a bit about what was found.

There was discussion today about the protection of conscience rights, and I do not agree necessarily with the Parliamentary Secretary to the Minister of Justice. I see the charter provisions that were put into Bill C-14, but forcing somebody to refer, when they do not want to have anything to do with the process at all, is actually violating their rights. I am not a fan of violating one person's rights to give another person their rights. That is not good, so we need to have more discussion about that.

In its report, the special committee that studied the Carter decision said that, without good-quality palliative care, people really cannot make a true decision. They really do not have a choice. Obviously I have been an advocate for palliative care. My private member's bill, Bill C-277, on palliative care, was unanimously passed in the House and in the Senate. The government did a good job of putting the framework in place to get consistent access for all Canadians to palliative care.

The problem is that, once the framework was in, the government has since really not pushed ahead. There are 70% of Canadians who have no access to good-quality palliative care. Especially in the time of COVID, where people are dying, it is becoming even more important. The government needs to take action to up its game on palliative care to make it more available to Canadians.

There is an opportunity and a responsibility for the government to show leadership in how palliative care is being implemented in Canada. Right now, for example, British Columbia is violating the World Health Organization's requirements for where MAID should be performed. It has specifically said that palliative care is a different thing from medical assistance in dying and that they should not be performed at the same location because of a tendency by people wanting palliative care to be afraid that they will accidentally receive medical assistance in dying against their wishes. There is an opportunity for the government to revisit that and I am hopeful that it will.

With respect to the Council of Canadian Academies, many issues were studied. On the advance directives and advance consent issue, we see in this legislation that the government is allowing people who believe their conditions are going to decline and are eligible to receive medical assistance in dying to have a 90-day advance consent. It is not clear to me in the legislation when the 90 days start. Is it when patients first have discussions with their physicians? When does the clock start? That is a clarification that is needed in the legislation.

When the council looked at advance directives, it said there were a few difficulties. The first one was how to prove people have informed consent, what the criteria are and what the definition is of that. Therefore, that would have to be addressed. Who decides what is intolerable suffering, especially if the person has lost capacity? That is another question that needs to be and should be considered in this fulsome review that is required and that I would have preferred to have had before this bill came forward.

As a point of information, Belgium and Luxembourg only allow an advance directive when a person is permanently unconscious. That is the only way they will allow a person to have an advance directive in place: If they become permanently unconscious, they will receive medical assistance in dying.

On the issue of minors, “mature minors” would have to be defined. In Quebec, that is defined as people aged 14 to 17. However, we have to make sure they have the capacity to make medical decisions and confirm they understand that it is voluntary and they are not under duress. There are not many jurisdictions that have extended this to mature minors. The Netherlands does allow people aged 12 to 16, with parental permission, to have medical assistance in dying, and those aged 16 to 18 with parental consultation. Belgium allows it if the person is terminal, but pediatric palliative care has to be provided as an option. Therefore, there needs to be further discussion on that one.

Then there are those who suffer from mental illness. I was very pleased to see that it is clear in this legislation that they would not be eligible. It was very controversial. The council that studied it could not agree. There was discussion about the capability for informed consent and the fact that people with depression could have good and bad days and may change their minds, which again points to the need for some kind of cooling-off period. The Netherlands allows this but for dementia only, and there is still a lot of controversy about that.

The safeguards that were in the bill originally seem to have been removed. I am not a fan of doing that because I would say that if we remove the conditions that have to be met in order to get something, more people will take advantage of it. I am concerned with a broader creep on this, but I am sure there will be fulsome discussion about this at committee.

In Canada, everyone has the freedom to express themselves, to believe what they want and to choose what they want, and we should treat everyone's individual choices with respect.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I know the member for Sarnia—Lambton as an advocate of science and palliative care, which she raised today and is an important point. The question I would put to her is an observation about the current state of palliative care in Canada.

The government has invested $11 billion in accommodation of home care and mental illness care, which includes targeted money directly for palliative care. It is not just supplying the programming but ensuring that palliative care is provided to those seeking MAID. That is in track two, where someone's death is not reasonably foreseeable. The new requirements are that a person must be informed of counselling, mental health supports, disability supports and palliative care. Further, the practitioner must agree with the person that they have discussed and appropriately considered receiving means of alleviating their suffering before anything can be acted upon.

I know the member has talked about safeguards throughout today's debate. Do those address some of her important concerns about palliative care?

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

Madam Speaker, these are absolutely the kinds of supports that are needed, but the reality is that they are not actually in place everywhere. This makes a huge difference.

I will give an example from the first year after Bill C-14 came into law. Sarnia—Lambton has a huge capacity for palliative care. We have a hospice with 20 beds. There are also beds in the hospital, and we have home care. We have an integrated palliative care system. There were two requests for medical assistance in dying in the first year. London, just an hour away, has a population that is about three times larger than Sarnia's population. It had 300 requests for MAID because it does not have adequate palliative care services.

The government can help out with establishing hospice. The virtual palliative care work that has started is very helpful, especially in rural and remote areas, but it of course requires broadband Internet access. The government can also use some of the successful models, like using paramedics in their off hours, to deliver palliative care. These things could really boost the existence of the supports people are being counselled about, and then people could take advantage of them.

[Mario Beaulieu, Bloc, La Pointe-de-l'Île, QC]

Madam Speaker, if I understand correctly, my colleague thinks the Truchon and Gladu decision should have been appealed. These two individuals were refused medical assistance in dying because their deaths were not reasonably foreseeable. They both have serious degenerative diseases. People in this situation are forced to either wait or go to court.

I would like my colleague's opinion on this.

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

Madam Speaker, I do not have an opinion one way or the other. Quebec has its jurisdiction and its courts make decisions, but when the government has to respond to a decision, that needs to be the focus. I do not disagree with the member for Fundy Royal, who said that the government should have taken this to the Supreme Court. This is a very serious issue, not something to be decided in a rush.

There will be continual petitioning by those who want everyone to have access to medical assistance in dying. I expect the people I talked about in my speech, including minors and those who are mentally ill, will be continually legally petitioning to expand the scope, which I do not personally support.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Madam Speaker, today's debate is forcing all parliamentarians to step into another person's shoes and have empathy for the grievous conditions that they are suffering through. That is difficult, especially when we are lucky enough to have our health.

I understand the member's concerns with the bill, but that being said, there are a lot of people in Canada watching today's debate. Does my colleague see a value in the second reading vote on the bill to get it to committee so that we can further dissect the provisions she sees as problematic and maybe come up with some amendments?

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

Madam Speaker, there are certainly amendments that must happen to fix the things that are wrong in the bill. I look forward to that discussion at committee.

[Chris Bittle, Liberal, Parliamentary Secretary to the Minister of Transport]

Madam Speaker, before I begin, I would like to state that I am splitting my time with the hon. member for Winnipeg North.

We have a serious issue before us, the issue of Bill C-7. It has been an excellent debate so far and an excellent opportunity for members on all sides to talk about this issue because it goes to our morality and to our own conscience, and we are hearing from all sides about this. I want to say that we got it wrong with the last piece of legislation; we got it wrong with Bill C-14. I want to commend the Attorney General for coming forward with Bill C-7.

I would also like to recognize a few members who were vocal advocates, working on the justice committee with Murray Rankin at the time; the hon. member for Saanich—Gulf Islands; my friend, the hon. member for Don Valley West and many other members of the Liberal caucus who tried to advance medical assistance in dying so that it would be constitutional.

I am here today to speak in support of Bill C-7, which proposes amendments to medical assistance in dying legislation. Members are aware that the Superior Court of Quebec found the eligibility criterion of reasonably foreseeable natural death from the Criminal Code made legislation to be unconstitutional. The court delayed the effect of the ruling to allow both the federal and Quebec legislatures to respond. The government has agreed with this basic principle of this decision and is now proposing to amend the Criminal Code.

Bill C-7 proposes to repeal the requirement that natural death be reasonably foreseeable. It would create two sets of safeguards: one for those whose death is reasonably foreseeable and another for everyone else. Some of the existing safeguards for those who are dying would be relaxed, and for everyone else there would be a different set of safeguards based on the current ones with some additions and clarifications.

Bill C-7 proposes to continue to use the expression, “reasonably foreseeable” natural death, but as an element that determines which set of safeguards to use and not to use it as an eligibility criterion, which was the issue in the Truchon case.

The proposal to distinguish MAID requests on the basis of whether a person's death is reasonably foreseeable is consistent with the view that MAID for people whose death is reasonably foreseeable presents less risk and complexity than other circumstances, and that the assessment of requests should be tailored to these different types of cases. Having a reasonably foreseeable natural death would also be a critical element for another proposed amendment in the bill. Currently, the MAID law requires the practitioner to give the patient the opportunity to withdraw consent or to affirm their consent just before MAID is provided.

This requirement for final consent is a safeguard; however, it has also caused some MAID patients to choose to end their lives earlier for fear of losing their capacity to provide final consent and, sadly, for some to be denied MAID entirely after losing capacity. I would also like to point out that others chose to decrease their intake of painkillers prior to MAID being provided, to ensure they retained capacity to consent, which leads to an increase in suffering.

BillC-7 would allow for a possible waiver of requirement for final consent for individuals whose death is reasonably foreseeable but where there are fewest risks and complexities in providing MAID to a person who is no longer able to consent. Permitting this proposed waiver of final consent would respond to scenarios like that of Audrey Parker of Nova Scotia, who was diagnosed with terminal cancer that had spread to her brain leaving her uncertain as to how long she would have the capacity to consent. Because she feared losing capacity before her preferred date to receive MAID, she scheduled MAID and ended her life earlier than she wanted. She openly expressed how she felt unfairly forced by the limitations of the MAID law to schedule MAID sooner than preferred and called for amendments to the Criminal Code so that others like her would not be denied the freedom to choose their preferred date to receive medical assistance in dying.

I would recommend that all members listen to the speech in the previous session from the hon. member for Dartmouth—Cole Harbour. I believe Audrey Parker was a constituent of his. He powerfully used her own words to show us where we went wrong, the impacts our failures in the previous legislation had led to, and the impacts on her life. We owe it to people like Audrey Parker, who have been assessed and approved for MAID, to respect their need for freedom in making end-of-life choices. As a compassionate society, we know we can do better to support these individuals. These amendments seek to do just that.

Waiving final consent is, however, an ethically complex question. This is because it involves MAID being administered to a person who is no longer able to consent, or to withdraw the consent they previously gave. Bill C-7 proposes a new approach for patients whose death is reasonably foreseeable, who are assessed and approved for MAID when they have the capacity, and who make very specific arrangements with their practitioner in which they give consent in advance to MAID being administered on a specific day, even if they have lost capacity by that day.

I fully support permitting advance consent for this group of individuals, but at the same time, I note that certain protections must be in place. Specifically, if on the specified day for MAID, the patient has lost their capacity and they nonetheless actively show signs of resistance to the MAID procedure, or behave in a way that indicates a refusal, the practitioner must not follow through on the procedure.

Medical practitioners at the round table expressed concerns in relation to the emotional burden that could arise from such situations, for them and for family members. They talked of possible disagreement with family members on whether to end the life of a person who appears to resist the procedure. A similar situation led to the prosecution of a MAID provider in the Netherlands and made headlines around the world. That situation is what we wish to avoid here in Canada.

That is why Bill C-7 proposes an additional provision that states that signs of resistance from the patient would make the advanced consent invalid on the specific day and going forward. While an incapable person could no longer withdraw their consent from a legal perspective, given their track record and decision-making capacity, it is proposed that MAID not be permitted under this circumstance. The approach provides much needed clarity for practitioners and family members that MAID be prohibited if the patient is resisting. The bill would also make it clear that an anticipated reflexive response, like flinching when the needle is inserted, does not count as resistance.

It is important to be clear, however, that this amendment is not about advance requests. Advance requests for MAID refer to a situation in which a person puts in writing they would want to receive MAID at some later date when they are not able to consent to it, if circumstances arise that they predict would cause them unbearable suffering.

In this situation, a person is not asking for MAID now. Instead, they are putting in writing that they want it at a later date on the basis of anticipated suffering that has not yet happened. The most likely scenario would involve people who are diagnosed with conditions that could lead to dementia, such as Alzheimer's. These people would want to have a plan in place if their worst fears should come to pass.

Bill C-7 does not propose to allow MAID on the basis of advance requests. MAID in these circumstances would be extremely complex, would avoid ethical challenges and would require more time to consider such measures. In speaking to the Attorney General, I voiced my concern that we need to spend more time considering these measures. I hope that the issue will be studied during further upcoming parliamentary review of the MAID legislation.

Taking more time to study advance requests is consistent with the approach of the Government of Quebec, which is also moving forward to hold public consultations on the issue so that all of its dimensions can be better understood.

MAID is one of the most sensitive and challenging social issues we are currently faced with. Recognizing how deeply personal this issue is to so many people, and to so many members of this place, the government has listened carefully to the diverse opinions of Canadians and has considered the expertise shared by experts, MAID providers and other experts in the development of this important piece of legislation. Bill C-7 responds to the Superior Court of Quebec ruling, but it also achieves balance that respects personal autonomy, while protecting the vulnerable as well as equity rights for all Canadians.

For these reasons, I call on all members to support the bill.