Bill C-39

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

This enactment amends An Act to amend the Criminal Code (medical assistance in dying) to delay, until March 17, 2024, the repeal of the exclusion from eligibility for receiving medical assistance in dying in circumstances where the sole underlying medical condition identified in support of the request for medical assistance in dying is a mental illness.

Criminal Code

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

Madam Speaker, today we are revisiting a subject that never seems to leave me in this place, which is medical assistance in dying. It has come up repeatedly: in the 42nd Parliament, in the 43rd Parliament and again in the 44th Parliament. I think it underlines the gravity of the nature of this subject matter.

I want to thank the member for Abbotsford for bringing forward this bill and for giving us as parliamentarians an opportunity to discuss this incredibly important subject.

What Bill C-314 is essentially going to do, for the constituents of Cowichan—Malahat—Langford who are watching this debate, is amend the Criminal Code to reverse what was done with Bill C-7 and specify that a mental disorder is not a grievous and irremediable medical condition for which a person could receive medical assistance in dying.

It is important to mention Bill C-7, because it is an important part of why we are here today. Bill C-7 was originally introduced in the 43rd Parliament. The government is, of course, required by law to issue a charter statement with its main pieces of legislation. In that charter statement, the Minister of Justice went to lengths to make people understand why the government had specifically excluded in the first draft of the bill why a person with a mental disorder as a sole underlying medical condition could not be eligible to receive medical assistance in dying.

The charter statement did say that the exclusion was not “based on a failure to appreciate the severity of the suffering that mental illness can produce”. Rather, as the statement took pains to say, it was “based on the inherent risks and complexity that the availability of MAID would present for individuals who suffer solely from mental illness.” It is important to understand we are not using the term “mental illness” anymore. Every text is now recommending that we use the term “mental disorder”.

There were three primary reasons given in the charter statement at that time. First, the charter statement said, “evidence suggests that screening for decision-making capacity is particularly difficult, and subject to a high degree of error”.

The charter statement went on to say, secondly, “mental illness is generally less predictable than physical illness in terms of the course the illness will take over time.” I think a lot of people can understand that. Someone may receive a diagnosis for a physical illness like cancer, which is particularly well known. We know a lot about cancer these days, and based on what part of the body it strikes, we can predict with a fairly certain amount of accuracy what a person's ability to survive it is based on how far it has progressed and so on. It is the same with other physical ailments. With mental disorders, on the other hand, there still are, indeed, a lot of unknowns.

Finally, that same charter statement went on to explain that the recent experience in the few countries that do allow it, and it did mention Belgium, Netherlands and Luxembourg, “has raised concerns”.

That was the charter statement at the time with the first draft of Bill C-7. Of course, When Bill C-7 went to the Senate, the Senate amended that part of the bill to allow a person with a mental disorder as a sole underlying medical condition to access MAID. There was some back-and-forth between the government and the Senate to establish a sunset clause so that it would not come into effect until March 17 of this year.

At the time, the New Democrats decided to vote against the Senate amendment because the requirements of the earlier Bill C-14 had not yet been met. We had not yet had a parliamentary committee to delve into these issues, and we felt that, despite the government having gone to all those lengths through its charter statement to explain its position, accepting an eleventh-hour Senate amendment without having done that important work was very much akin to putting the cart before the horse.

There was also Bill C-39, which was introduced earlier this year because we found that more time was needed. Whatever anyone's feelings are in this House with regard to people with mental disorders being able to access MAID, there was agreement that more time was needed. Therefore, Bill C-39 was passed in very short order in both Houses, and that delayed the implementation of it until March 17, 2024. That is the timeline we are on now.

I am rising to speak to this particular bill because of my experience with this file. Both in the 43rd Parliament and in this Parliament, I was the New Democratic member on the Special Joint Committee on Medical Assistance in Dying.

It was not an easy committee to be on. Let me just say that. For me personally, I constantly wrestled with two concepts: How do we as parliamentarians, with the power we have to change Canada's laws, find a way to honour the personal rights, capacity and autonomy of the individual versus the need of society to step up and protect the most vulnerable? Those were two great themes that were constantly a struggle for me personally when listening to all of the witnesses who came before the special joint committee on the five thematic areas we were charged with by this House and the Senate.

I would encourage people, if they have not done so already, to look at the good work done by the special joint committee, both the interim report, which specifically focused on this area, and the final report, which was tabled earlier this year and completed the committee's mandate. I also want to draw people's attention to the executive summary of the final report of the expert panel on medical assistance in dying and mental illness because there was some incredibly good work done in that as well. We did recognize the authors of that report. The report states:

That MAiD requests may mask profound unmet needs or conversely, that such requests may not be received with the seriousness they deserve, has been raised with respect to several historically marginalized populations (e.g., racialized groups, Indigenous peoples, persons living with disabilities, and sexual orientation and gender minorities). In the course of assessing a request for MAiD—regardless of the requester’s diagnoses—a clinician must carefully consider whether the person’s circumstances are a function of systemic inequality.

That is the warning sign that I think much of the medical community is struggling with.

People with mental disorders qualifying for MAID will be under track two of the MAID regime, because death is not a naturally foreseeable outcome. I would remind people that track two has safeguards in place:

request for MAID must be made in writing....

two independent doctors or nurse practitioners must provide an assessment and confirm that all of the eligibility requirements are met....

the person must be informed that they can withdraw their request at any time....

the person must be informed of available and appropriate means to relieve their suffering, including counselling services, mental health and disability support services, community services, and palliative care....

I want to underline that last point. They have to be informed of the available and appropriate means, but we know that for a lot of marginalized populations, those are not always available.

I want to recognize my colleague from Courtenay—Alberni, who has called on the government to urgently fulfill its promise to establish a Canada mental health transfer. This is a very great need in our country. We can see it from coast to coast to coast. I can see it in my community of Cowichan—Malahat—Langford.

The question of Bill C-314 and the state of mental health care in Canada are two things weighing on me quite a bit. I am certainly going to take a lot of time to think about which way I want to go with this bill, but I appreciate the member for Abbotsford for bringing it forward and giving parliamentarians an opportunity to read the report and consider what this bill seeks to do.

[Gary Anandasangaree, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Madam Speaker, I thank the member for Abbotsford for bringing forward Bill C-314, an act to amend the Criminal Code regarding medical assistance in dying.

I acknowledge that we are gathered on the traditional unceded lands of the Algonquin people.

The bill before us proposes to indefinitely exclude persons whose sole underlying medical condition is a mental disorder from being eligible to receive medical assistance in dying, or MAID. I will be opposing the bill for reasons I will detail in my remarks. I want to start by providing a brief overview of MAID in Canada.

MAID was legalized in 2016 for persons whose natural death is reasonably foreseeable, through former Bill C-14. Four years later, in 2021, former Bill C-7 expanded eligibility for receiving MAID to persons whose natural death is not reasonably foreseeable. Former Bill C-7 also temporarily excluded, until March 2023, eligibility for receiving MAID on the basis of a mental illness alone.

Parliament decided that a temporary exclusion from eligibility for MAID where the sole underlying medical condition is a mental illness was necessary in recognition of the fact that such requests were complex and required additional study. This is why former Bill C-7 also required an independent expert review regarding recommended protocols, guidance and safeguards to apply to such requests. The expert panel on MAID and mental illness was created to undertake this review, and its final report was tabled in Parliament on May 13, 2022.

Former Bill C-7 also required the establishment of a joint parliamentary committee to conduct a comprehensive review of the Criminal Code MAID provisions and other related issues, including MAID and mental illness. The Special Joint Committee on MAID, or AMAD, took this review and tabled its final report in Parliament on February 15, 2023.

Our government extended the temporary exclusion to March 2024 through the enactment and coming into force of former Bill C-39. This was due to concerns about provincial and territorial readiness. It is important that we get this right.

I want to take a moment to point out that the intention has always been for the mental health exclusion to be temporary. This is a complex, sensitive and polarizing issue. Some very legitimate concerns have been raised.

However, I believe that the health care system will be ready for the safe provision of MAID where the sole underlying medical condition is a mental illness by March 2024. Significant progress has been made by our government, in collaboration with the provinces and territories and other stakeholders and experts, to prepare for this deadline.

We are not ignoring the concerns that have been raised. In fact, many of these concerns led to the one-year extension of the exclusion. We are moving in a prudent, measured way with the ultimate goal of ensuring that our MAID framework supports the autonomy of those who are eligible to receive MAID and protects those who may be vulnerable.

I will now turn to Bill C-314 and outline some of the technical issues.

As I stated previously, the bill proposes to indefinitely exclude eligibility for MAID based on a mental disorder alone. It would do this by replacing “mental illness” with “mental disorder” in subsection 241.2(2.1) of the Criminal Code.

There are two main issues with this approach. First, such a change may result in the unintended exclusion of persons with some medical conditions that are not currently excluded from eligibility for MAID. This is because “mental disorder” is a clinically defined term that practitioners have explained would likely capture all mental disorders included in the American Psychiatric Association's “Diagnostic and Statistical Manual of Mental Disorders”, or DSM-5, whereas “mental illness”, as it relates to MAID, is meant to capture mental disorders that are primarily treated within the domain of psychiatry.

“Mental illness” likely captures a smaller set of conditions than what would be captured by “mental disorder”. As such, making the switch in terminology without an accompanying definition may have the unintended consequence of excluding certain medical conditions that are not currently excluded from eligibility for MAID and that do not raise the same concerns as “mental illness” does in relation to MAID.

The second issue is that the term “mental disorder” is already defined in section 2 of the Criminal Code as “a disease of the mind”, and there is extensive case law interpreting what this means in the context of the “not criminally responsible” regime. Therefore, a switch in terminology in the Criminal Code MAID provisions without an accompanying definition may unintentionally complicate legislative interpretation and may also result in the existing case law interpretation of “mental disorder” and the “not criminally responsible” regime context being applied to the MAID context.

Although many experts and practitioners have noted a preference for the term “mental disorder” since it is a clinically defined term, this preference has already been expressed in the context of developing protocols, standards or guidance for MAID. It is important to remember that MAID is not just a health care issue. It is also a criminal law issue, and as I have just explained, things can get complicated in the legislative context given existing definitions and legal interpretations.

Finally, I simply want to point out that Bill C‑314 also restructures the exclusion set out in the Criminal Code but does not seem to change its application.

Currently, in order to be eligible for MAID, a person must have “a grievous and irremediable medical condition”, which is present when a person has a serious and incurable disease or disability, is in an advanced state of irreversible decline and is experiencing enduring and intolerable suffering, as per subsection 241.2(2).

Right now, a mental disorder is not considered an illness, disease or disability under the first part of the definition of a grievous and irremediable medical condition.

As such, a mental illness cannot satisfy the definition and therefore cannot be grounds for a request for MAID.

Under the proposed new exclusion, a mental disorder would not be considered a grievous and irremediable medical condition at all. In other words, it would exclude mental disorders from the whole of the definition, even though some of those aspects may well exist in the case of a mental disorder, namely intolerable suffering and an advanced state of decline. Although this new exclusion would operate slightly differently than the existing exclusion, it seems as though its effects would be the same.

I want to reiterate that Parliament considered this two years ago during its consideration of former Bill C-7 and decided that a MAID mental illness exclusion should be temporary. The point was reinforced by Parliament's enactment of former Bill C-39 this past March.

The expert panel on MAID and mental illness has tabled its final report, which notes that the existing MAID eligibility criteria and safeguards, supported by other key resources, provide an adequate framework for the provision of MAID where the sole underlying medical condition is a mental illness. Parliament considered the issues again via the Special Joint Committee on MAID, and the majority of members agreed with the expert panel's findings.

I urge members to join me in opposing the bill and not reverse Parliament's decision by unintentionally complicating legislative interpretation in the criminal law.

[The Assistant Deputy Speaker, Carol Hughes]

I have the honour to inform the House that a communication has been received as follows:

Rideau Hall

Mr. Speaker,

I have the honour to inform you that the Right Honourable Mary May Simon, Governor General of Canada, signified royal assent by written declaration to the bill listed in the Schedule to this letter on the 9th day of March, 2023, at 5:10 p.m.

Yours sincerely,

Ian McCowan

Secretary to the Governor General and Herald Chancellor

The bill assented to, Thursday, March 9, 2023, is Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).

Message from the Senate

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

I have the honour to inform the House that a message has been received from the Senate informing this House that the Senate has passed the following bill, to which the concurrence of the House is desired: Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying).

Online Streaming Act

[Eric Duncan, Conservative, Stormont—Dundas—South Glengarry, ON]

Madam Speaker, normally, there would not be much debate in the House when we talk about making updates to the Broadcasting Act, which came into effect in 1991. At face value, most Canadians would say that a lot has changed since then. A little thing called the Internet came along, and most would agree.

I have talked about this topic in the House before and I am pretty proud of myself. I am pretty sure that I was the first MP in Canadian history to put Boyz II Men in the parliamentary record, when talking about the legislation before us, because times have changed a little bit. Back in 1991, Boyz II Men, Bryan Adams, MC Hammer and Monty Python were on the charts. I wanted to put that in the record again, and I am glad I have done that.

The goals of the Broadcasting Act have been reasonable: respecting official languages and providing an avenue for Canadian content in the traditional media at the time of TV and radio. Here is the thing I have said in the House, sadly, on many issues over and over again: Only the NDP and the Liberals, working together, can take something so mundane and so innocuous and make a disaster out of it when it comes to policy.

Here is how I know that. Outside of the Ottawa bubble, there are not too many Canadians who know what Bill C-4 or Bill S-252 or Bill C-39 is when it comes to government legislation. We know that the government is in trouble and we know it is on the wrong side of public opinion when a bill title becomes famous. In the last couple of weeks or couple of months, Bill C-21 has become synonymous with an attack on rural Canadians, indigenous communities and hunters, when the government tried to ban commonly used hunting rifles. Here we are now, with the famous term “C-11”, known by millions of Canadians across the country today as the most blatant attempt by the Liberals and the NDP, and bureaucrats in Ottawa, to have control over what Canadians see and what they search on the Internet.

If that was not convincing enough, Bill C-11 being a household name to millions of Canadians, we know we are in trouble when Conservatives and Margaret Atwood are on the same page, pushing back against the government. She is a wonderful Canadian, one of the most regarded and successful Canadian artists and content creators this country has ever seen. Canadians do not have to take my word for it or believe this side of the bench if they do not want to. Canadians will take Margaret Atwood's word on Canadian culture and content any day of the week over that of the Liberals and the NDP.

I want to give members the dictionary version of what she said. She said some pretty harsh things, calling out the government on Bill C-11. When we break it down and use the dictionary to further define what she is calling out the government for, it is creating a centralized and dictator-like system of control that requires complete subservience to the state.

This is bad legislation. They know it. It has been ping-ponged back and forth between the House of Commons and the Senate. It is back in the House of Commons, and it is going to go back to the Senate. Every time there is a committee hearing, every time there are more witnesses testifying, there are more questions than answers about what the government is doing here with this bill. From consumer groups to legal experts to content creators, many, many groups from every walk of life and every angle on this topic are calling out the government's direction and how bad and how flawed the bill is.

I am proud to stand as a Conservative to say that when we form government, we will repeal Bill C-11. We will kill Bill C-11, as simple as that.

Let us get into the weeds and talk about some of these pieces bit by bit. One of the things we hear the Liberals and the NDP say is that we need to support Canadian content more.

When I think about that, I pull up a list and say, sure, let us support Canadian content, things like Deadpool. It was filmed in Vancouver, starring Canadian actor Ryan Reynolds, with a screenplay by Canadian Paul Wernick, based on a Canadian comic book character.

We have Canadian Bacon. Who could forget that? There is John Candy, a legendary Canadian actor, in a story involving Canada.

I talked about Margaret Atwood. We have The Handmaid's Tale, based on her book. When we look at the production, the series was filmed in Mississauga, Toronto, Brantford, Hamilton, Burlington, Oakville, Cambridge.

I think of Canadian content like All or Nothing, a series on the Toronto Maple Leafs. It is a five-part series that followed the Leafs for months during the 2020-21 season. It is narrated by a Canadian, Will Arnett. It used Canadian crews.

Is this all Canadian content? No, every one of those examples I just cited does not meet the definition and criteria for Canadian content in the definitions that we have.

Bill C-11 is currently 56 pages long, and any Canadian can go online and look at it. They can hit Ctrl+F and search. Nowhere in there does it talk about modernizing and cleaning up that definition. I will argue that this is not about Canadian content, but about something else.

Every time, we put an amendment forward to clarify. If the government wants to debunk a myth and say that what we are saying is not the case, it can clarify it and put in amendments to say what it is not, to exclude certain things. The government refused to do so. It says, “Don't worry. We are not going to determine that. It's going to be the CRTC.”

This brings me to my next point, about another fundamentally flawed part of the legislation. The CRTC is an Ottawa-based acronym. Federal acronyms go left, right and centre around here. It is an agency in Ottawa, and on the Quebec side as well, in the national capital region, full of bureaucrats who, behind closed doors, would not only set the rules for what is Canadian content, but also, through the bill, be directed to start controlling the search results we have on the Internet.

Members heard that right: “behind closed doors”. We have asked repeatedly to put some sunshine, sunlight and transparency on those protocols. There are no criteria in the bill. There is no public formula. There are no clarifications or guardrails on what those protocols are, so for Canadians, when it comes to what they search and what they want to see, whether it is searching on Google, Crave, YouTube or any other platform, as a Canadian here and now, the government will control what goes up in search results and what goes down, and we would not be able to find out the algorithms and calculations it uses, because of CRTC bureaucrats doing it behind closed doors. They never have to share their reasoning, or what I call “showing their homework”. That speaks volumes.

The Prime Minister and the NDP will say not to worry because the CRTC is an arm's-length agency of the federal government. “It is independent,” they say. Let us just debunk that right now. The CRTC reports to the Liberal Minister of Canadian Heritage. Its chair and the commissioners who are working there and leading that organization are appointed directly by the Prime Minister and the Liberal cabinet.

Nobody believes it is arm's-length, and nobody believes the legislation is about Canadian artists and everyday Canadians, because if it were the right thing to do and the popular thing to do, and if there were no problems about it, the government would have made that whole process a lot more public, rather than punting it over behind closed doors.

The bill is not about sunlight. It is not about Canadian artists and content creators. I say the bill is a Trojan horse, because there are some very big cheerleaders for it. The bureaucracy at the CRTC would be exploding in size. The size of the Internet is massive. The amount of content uploaded every single day is huge. It is going to take an administrative swarm of new bureaucrats to go through, and the people who are going to hit the jackpot, the people who are doing cartwheels in downtown Ottawa, are the lobbyists who would be hired by all these groups, associations and artists to try to lobby to get them, when the CRTC goes behind closed doors, to take what is going on.

As I share my time with the member for Leeds—Grenville—Thousand Islands and Rideau Lakes, we will continue the commentary on this and how it works. If someone is a budding content creator in north Winnipeg, a Franco-Ontarian or an indigenous artist in northern Canada, in Nunavut, they can currently upload, and may the best content win. The cream of the crop rises. Canadians will determine what they like and what they want to watch, and that should be the most popular search result. That is the most organic way possible. Trust me, the best way is to let Canadians do their own work and let the organic way go. Good videos go to the top. We have thousands of artists who have made a living by creating content and continue to do so. We do not need to fix what is not broken.

I will wrap up by saying that Bill C-11 is bad. It is online censorship. Ottawa telling 37 million Canadians what they should watch and see is wrong. The Liberals and the NDP have had years to get this right, and now they are just being stubborn.

We oppose this bill now, and as a Conservative government, we would kill Bill C-11.

National Framework on Cancers Linked to Firefighting Act

[Blake Richards, Conservative, Banff—Airdrie, AB]

Madam Speaker, I rise on a point of order.

During the debate on Bill C-39, I had finished giving a speech and was in the middle of the question and answer period. The normal practice is that someone asks a question, and usually, before moving on to the next item of business, there would be an opportunity for the person being asked a question to at least reply to the question. I was not afforded that opportunity. I wanted to raise that because it seemed odd to me. I wonder if it breaks with the usual practice we have.

Madam Speaker, I will ask for your ruling on this, but I think I should have been afforded the opportunity to at least respond briefly to the question I was asked.

Business of the House

[Mark Gerretsen, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons (Senate)]

Mr. Speaker, there have been discussions among the parties and if you seek it, I believe you will find unanimous consent for the following motion:

That, notwithstanding any standing order, special order or usual practice of the House, Bill C-39, An Act to amend the Criminal Code (medical assistance in dying), be disposed as follows:

(a) the bill be ordered for consideration at the second reading stage later today and Wednesday, February 15, 2023;

(b) later today and Wednesday, the House shall continue to sit beyond the ordinary hour of daily adjournment for the purpose of considering the bill;

(c) after 6:30 p.m. today and Wednesday, February 15, 2023, no quorum calls, dilatory motions or requests for unanimous consent shall be received by the Chair;

(d) today, when no member rises to speak or at 11:59 p.m., whichever is earlier, the debate be deemed adjourned and the House deemed adjourned until the next sitting day, and that the debate pursuant to Standing Order 38 not take place; and

(e) on Wednesday, February 15, 2023, no later than 11:59 p.m., or when no member rises to speak, whichever is earlier, the bill be deemed read a second time and referred to a committee of the whole, deemed considered in committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed; after which the House be deemed adjourned until the next sitting day, and that the debate pursuant to Standing Order 38 not take place; and

that the Standing Committee on Justice and Human Rights be instructed to consider the subject matter of the bill on Tuesday, February 14, 2023 and shall have the first priority for the use of House resources for committee meetings.

[Mark Holland, Liberal, Leader of the Government in the House of Commons]

Mr. Speaker, as somebody who has had a battle with mental health issues, I can tell the hon. member that this bill, for our government, for myself and I believe for every member in this House, is something that is exceptionally important and something that we want to get right. We have had very good and deliberative discussions among all parties, and I think we have the opportunity to continue those deliberations to make sure that we get that balance right and that we meet the objective we all have of ensuring that we protect vulnerable people.

Tomorrow we will resume the second reading debate of Bill S-8, an act to amend the Immigration and Refugee Protection Act. On Monday and Wednesday, further to the opposition House leader's question, we will call Bill C-39, which extends the temporary exclusion of eligibility for medical assistance in dying where a person's sole medical condition is a mental illness until March 17, 2024. I would also like to inform the House that Tuesday and Thursday of next week shall be allotted days.

[Andrew Scheer, Conservative, Regina—Qu'Appelle, SK]

Mr. Speaker, Thursday is the day when the government informs the House as to the business for the coming days.

I want to note, in particular, the need to address Bill C-39, which has only been tabled very recently, despite the fact that the government had years knowing about a deadline to protect vulnerable Canadians as it relates to the medical assistance in dying regime. There is a deadline looming of March 17.

Conservatives feel very strongly that mental illness should not be the sole factor when considering medical assistance in dying. Therefore, we very much support passing this bill to establish more of a timeline for the government to get this right, and for parliamentarians to come together and get this part of the regime right.

I am hoping that when the government House leader rises to inform the House as to the calendar for the next few days, he can also tell us what the expectations are and how we can deal with this bill in a timely manner so it can get through the Senate and get royal assent to protect vulnerable Canadians who are struggling with mental illness.

[Andrew Scheer, Conservative, Regina—Qu'Appelle, SK]

Mr. Speaker, I rise today for the traditional Thursday question, where the government has the opportunity to inform the House as to the legislation that we will be debating in the days ahead.

I do note that, after the House leaders' meeting, there were some conversations about a very important piece of legislation, Bill C-39. Conservatives feel very—