Justice Committee on Nov. 24th, 2020

[The Chair, Liberal, Iqra Khalid]

Thank you.

The question now is on the subamendment.

Mr. Clerk, please record the vote.

(Subamendment negatived: nays 6; yeas 5)

(Amendment as amended agreed to: yeas 10; nays 1 [See Minutes of Proceedings])

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Clerk.

Shall clause 3 as amended carry?

(Clause 3 as amended agreed to: yeas 7; nays 4)

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Clerk.

Moving on with clause-by-clause, I will remind members that in our first meeting of clause-by-clause, I had made a ruling on amendment CPC-1, which was sustained. At that time, I had advised members that CPC-10, being consequential to CPC-1, was also inadmissible. I'm just letting members know that this ruling still stands, because we had voted and that ruling was sustained.

I call the question now on clause 4.

[Rob Moore, Conservative, Fundy Royal, NB]

On a point of order, Madam Chair, amendment CPC-10 deals with conscience rights for physicians. That's something that was brought up by a number of doctors from a number of specialties, including palliative care. They've specifically recommended that we provide meaningful conscience protection for health care professionals with respect to MAID.

While I respect your ruling on CPC-10, I would like to challenge that ruling, because I believe CPC-10 is admissible.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

We've already had that challenge to the ruling I made at the first meeting on clause-by-clause. You can't challenge what was already voted on and sustained by committee members. That would be out of order.

We'll go back to clause 4, and I'll call the question on clause 4.

(Clause 4 agreed to: yeas 7; nays 4)

[The Chair, Liberal, Iqra Khalid]

Now we're going on to what is a proposed new clause 5 by Monsieur Thériault in the form of amendment BQ-4.

Go ahead, Monsieur Thériault, if you want to move it.

[Luc Thériault, Bloc, Montcalm, QC]

Madam Chair, this amendment was intended to be preventive, because, when the minister appeared before the committee, he told us that he absolutely wanted the act to be reviewed quickly so that all the sensitive aspects ignored in Bill C-7 could be studied. One of those aspects was that Bill C-7 excluded the whole issue of mental illness.

Therefore, the purpose of my amendment is to look not only at mental illness, but also at neurodegenerative diseases, which had also been dropped from the bill. When we studied these diseases, we received witnesses who were even willing to move the discussion further even more. They said that they agreed with passing Bill C-7 to amend the Criminal Code, meaning Bill C-14, but that we should then get to work quickly to deal with those issues.

There was also the whole issue of mature minors. It is the contention of the Canadian Bar Association and of Mr. Ménard that the Carter decision, the Baudouin decision, and the court go much further: they imply that mature minors, mentally ill persons and persons suffering from neurodegenerative diseases should have access to medical assistance in dying.

I was asking myself the following question, which is perhaps for the department's legal experts.

Since Bill C-7 does not provide for a review of the act, does this automatically fall under section 10 of Bill C-14, which provides for a review of the act every five years?

If the act is amended, it becomes a new act. Does the new act mean a five-year delay before the review is undertaken?

In that sense, my amendment seeks to prevent us from studying and discussing the sensitive issues ignored in Bill C-7 in four or five years, when we have reached an agreement and the minister has come to testify. This had to be done quickly, since Bill C-14 already contained a provision that should have prompted us to review the act last summer.

I would like someone to answer my questions. That is why I introduced this section. I was told that I could not table a section like that because it would be too early and we could not review Bill C-7.

Bill C-7 is not legislation in itself. It is one part of a piece of legislation called the Criminal Code. Right now, court judgments are telling legislators that they are ignoring a major part of the problem and the people involved. If we don't want to end up with legislation that will be challenged in the Supreme Court once again, or slapped with a court order, we should already be at work, discussing it ourselves, and taking responsibility.

If people with neurodegenerative diseases heard today that the act would be reviewed in four or five years because that is what section 10 says, they would certainly challenge it in the Supreme Court. However, depending on how the legal community interprets section 10, my amendment would allow the act to be reviewed and considered now, after Bill C-7 is passed.

Keep in mind that I had asked the minister if he agreed.

The minister told me that he did and that it was a matter of agreement among the House leaders. I thought that was sort of weak as an answer or an intention. That is why I am introducing this amendment today. I did not have the answers to the questions I am asking you and I did not want to take any chances.

Who will give me answers? I want answers. I don't want to just be told it's out of order.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Thériault.

Mr. Maloney is next on the speaking list.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Was Mr. Thériault looking to me to answer his question?

[Luc Thériault, Bloc, Montcalm, QC]

Madam Chair, I asked the department's legal experts a question. I want to get answers before we continue the debate. It's critically important.

If they tell me that there's nothing to worry about and that Bill C-7 will not change what is already set out in section 10 of Bill C-14, and that the act can be amended after the bill passes, as early as next month or when Parliament returns in January, I do not see any problem. However, if not, I do see a problem, hence the relevance of my amendment.

I would like a legal clarification of what I have just stated.

[The Chair, Liberal, Iqra Khalid]

Would anybody from the department like to answer Mr. Thériault's questions?

[Joanne Klineberg]

Thank you, Madam Chair.

As we at the Department of Justice understand it, the requirement in the previous Bill C-14 to conduct a parliamentary review early in the fifth year after the act comes into force still applies. The fact that we have a new bill amending sections of the Criminal Code does not change the requirement in the previous Bill C-14.

As we understand it, a single parliamentary review is required, not a review every five years. We see no reason to believe that this requirement would be precluded or affected by Bill C-7.

[Luc Thériault, Bloc, Montcalm, QC]

I was told that, if I were to propose this amendment to Bill C-7, it would only require a review of this bill, not of the entire act. Is that correct?

[Joanne Klineberg]

That's an interesting question.

I think the scope of the requirement depends on the words you choose as parliamentarians. If the requirement written into the new bill is to review the bill and other related matters, I believe it will be allowed.

For example, one committee had requested that the state of palliative care be studied during the parliamentary review, even though it was not expressly set out in Bill C-14. As parliamentarians, you can make it a requirement for you to review whatever you want.

[The Chair, Liberal, Iqra Khalid]

Does that answer your questions, Mr. Thériault?

[Luc Thériault, Bloc, Montcalm, QC]

I understood that mental health would not necessarily be excluded from the review under section 10 of Bill C-14.

[The Chair, Liberal, Iqra Khalid]

Mr. Maloney, go ahead.

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair, and thank you, Mr. Thériault, for introducing this proposed amendment.

I understand where you're coming from, but my concerns are on a couple of different levels. But for the pandemic, there would have been a review undertaken already with respect to Bill C-14, as was required by the legislation. It's unfortunate that it wasn't able to go ahead in a timely manner, but we all know the reasons why, and I don't think anybody really takes issue with it too strenuously, at least I hope so. To the extent that this amendment is in response to that delay, I think it's unnecessary.

On another level, I think it may be a bit overzealous in the sense that if we were to apply a one year-review criterion to every piece of legislation that this committee or other committees pass, that's all we would spend our time doing—reviewing legislation that has been passed within the last 12 to 18 months, which speaks for itself as being unnecessary.

My understanding is that there's going to be a review taking place—likely as soon as early in the new year. By necessity—and I think we just heard this confirmed—that will include all aspects of this legislation, including many of the issues, if not all of the issues, that we've been talking about during the course of the last eight meetings. In addition to that, we'll be discussing and reviewing other aspects of the legislation as well, which will necessitate and involve further widespread consultation.

All of this is to say that, although I appreciate your amendment and I empathize with your motivation, in the circumstances we're currently in it's unnecessary, on the one hand, and on the other hand, it may be placing too heavy an obligation on this committee.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Maloney.

Mr. Moore, I have you next on the list. Go ahead, sir.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

Thank you, Mr. Thériault, for moving this amendment.

I think it's an interesting amendment. I think it's a timely amendment. It just raises a number of concerns that I have, and I do have some questions about the amendment.

Mr. Maloney just referenced our committee's having to deal with this, but my reading of this is that the amendment as proposed by Mr. Thériault says that “their application must be undertaken by any committee of the Senate, the House of Commons or both Houses of Parliament that may be designated or established for that purpose.” It says “designated or established”, similar language to what's used in Bill C-14. We, the justice committee, would not necessarily be the committee tasked with this review.

The reason why it's important, I think, to consider this amendment is that we're moving at lightning speed on a brand-new-to-Canada area of law. Up until Bill C-14, providing assisted dying was strictly prohibited within our Criminal Code. This is what's being amended and what was amended with Bill C-14. Bill C-14 was a response to court decisions, and Bill C-14, which was passed by the previous Liberal government, involved a mandatory five-year review. It used similar language to this amendment. It was not prescriptive as to whether it would be a review conducted by a joint committee of both Houses, a specified committee within the House of Commons, or a new committee put together for the purpose of the review.

As we know, that review, which was to take place this past summer, did not take place. Could a review have taken place in some capacity? Well, we were able to do a lot of things this summer. We all recognize the challenges faced with COVID. However, here's why it's important. The minister has signalled a number of topics for the review: minors, persons whose underlying issue is mental health only and not some other disability or injury, advance directives. You'd think that a review like that would inform new legislation. Unfortunately, with the decision in Quebec.... That was not appealed to the Quebec Court of Appeal, and it was not appealed to the Supreme Court of Canada.

The position I would take is that, when you have new legislation, part of the role.... We have a joint.... In Canada, we have a Minister of Justice and an Attorney General. The Minister of Justice is responsible for justice legislation, like what we have before us today, but the Attorney General has a distinct responsibility as well. The Attorney General's job, among other things, is to defend, within the court system, Government of Canada legislation. The Attorney General did not do that. In fact, at the first opportunity....

So, you have a brand new, shiny bill—created with a majority Liberal government—called Bill C-14. It provides for medical assistance in dying. It has a number of safeguards. It includes a requirement that one's death must be reasonably foreseeable. Well, the court decision struck down that aspect and said that, no, a person's death does not have to be reasonably foreseeable. Instead of seeking clarification, instead of defending the legislation....

There's a reason why, at the limited committee meetings we had, we heard overwhelmingly from the persons with disabilities community about their concerns with Bill C-7. Many of those people we heard from, including individuals who appeared before this committee, would not have been eligible for assisted dying under Bill C-14, but now would be eligible under Bill C-7. They're concerned with the message that sends to their community.

This is why this provision is important. The government did not initiate. The government still hasn't initiated.

Provincial legislatures are up and running. The House of Commons is up and running; we're having this committee here today. People are used to meeting virtually. To my understanding, all of our witnesses at this committee on this bill and future bills are going to be, by and large, appearing remotely. We heard from physicians, from people in the disability community, from MAID assessors, from MAID providers, from psychiatrists and from a broad spectrum of Canadians. Other parliamentary committees, even today, are doing the same type of thing that we are doing.

This legislative responsibility that we had in Bill C-14 to have a committee look at the state of assisted dying in Canada five years after the passage of Bill C-14 was supposed to have been completed already. It hasn't even started, and now we hear that maybe it will start in January.

Some of the things that were supposed to be studied in this review are things that we're dealing with on Bill C-7 right now. The Truchon decision did not deal with advance directives, but this legislation has advance directives in it. The Truchon decision did not say that the 10-day reflection period was unconstitutional. It didn't say that having two witnesses, two doctors, including a doctor who specializes in the ailment that the person has.... It didn't raise any of those things. It didn't say there was anything wrong with them, yet those changes are included in Bill C-7.

We could debate whether we agree or don't agree with those changes, but what is not subject to debate is that those changes were necessary to respond to the Quebec court decision. They simply were not. They were added into this legislation.

Parliament, in its wisdom, in passing Bill C-14 said that after five years we're going to study this. Implicit in that is that the study would inform future legislation. Instead, five years later we have new legislation that raises tremendous concerns across Canada.

I certainly went into this study with a open mind to look into Bill C-7. We heard from witnesses. The more I hear, the more concerns I have. We have palliative care doctors saying that there is no protection for conscience rights and that there is no protection for people who have had MAID suggested to them, maybe repeatedly, when it's not something they are considering. The disability community said that this makes them second-class citizens and that this is a “nightmare” scenario. Those are their words, not mine. Those are the words we heard from enabling accessibility and from other groups like Canadians with Disabilities. We heard from Roger Foley, a person who took the time to appear before this committee to make the case. It was a very selfless action on his part because he is doing this for people who are going to be in his situation in the future.

We have to listen to those voices.

The five-year thing didn't work, because here we are. Yes, we know there were issues this summer, but here we are and November is almost over. We're coming into December. There is no reason this study couldn't have started. The reason it hasn't started is that maybe they don't want to hear what it has to say before they pass more legislation, like Bill C-7.

In a vacuum, where we did not have the benefit of this study, we have Bill C-7. How many days did we spend studying Bill C-7? Four. This relates directly to the amendment being proposed by Mr. Thériault. We had four days to study something that profoundly changes the law in our country—completely different. Should Bill C-7 become law, the law when it comes to assisted dying in Canada will be profoundly different than it is today. That's without any debate. There's no argument that what we're doing right now is going to have a profound impact.

As a parliamentarian, I did not participate in the debate or the votes on Bill C-14. I would have liked, though, to have the benefit of that parliamentary study, whether it was the justice committee, a hybrid committee, or a committee of the Senate and the House. I would have liked to have the benefit of a robust study, hearing from a variety of witnesses who could have informed us in our deliberations now.

Without the benefit of that, we have this committee. In this committee, we took four days. The first day was taken up by the ministers, who, of course, enthusiastically supported their legislation. Of course they do. This isn't a partisan thing, because when we were in government, we would enthusiastically support our bills.

I haven't seen a sincere effort to reach across the aisle and say that we recognize the diversity of our country, that we recognize there are 338 elected parliamentarians who are all here to do a job, that we recognize that we are all equals around the table and that no one party, mine included, has a lock on good ideas. Every party represented here today, if we're honest with ourselves, may bring things of value to the table.

We have moved, and we have talked about 10 Conservative amendments. None of our amendments would have been earth-shattering. Some of them, in fact, just put back safeguards that the Liberal government itself saw fit to put into Bill C-14. I want to be abundantly clear that without even the benefit of this parliamentary review that's in Bill C-14, the government, the same government that passed Bill C-14, the Liberal government, is peeling away the safeguards that it included in Bill C-14.

Some people might say they don't work. How do you arrive at that conclusion without the benefit of the parliamentary study that you saw fit? People like to cite different groups. We can all do that. When we all do that, I think it should inform our decision-making. It doesn't mean any one group is 100% right, and I don't believe any one group that we heard in our limited testimony is 100% wrong.

Frankly, when I see the receptiveness of the government to some of the very fair, well-thought-out and appropriate amendments the Conservatives raised.... I hope it's not leading to the conclusion that the Liberals feel they know it all and they have a lock on good ideas. I'm willing to agree with some of the amendments from other parties, and I happen to agree with this one.

I agree with BQ-4, because I hope we're not banging our heads against the wall. If the government ignored a five-year study, well, maybe it will ignore a one-year study. They ignored the one that was supposed to take place after five years; maybe they'll ignore this one, which is supposed to take place after 12 months.

I hope this isn't the case. I hope we can send the message that if there is any area of law that deserves safeguards, that deserves a deliberate look at the implications in the application of the law, it's assisted dying. There's no question about that. It's literally life or death. It may not be the group that's here today. It may be some future parliamentarians, but I want future parliamentarians to be informed by a robust study before they make new decisions and amendments.

Frankly, those of us on the justice committee right now did not have the benefit of that type of study. I refuse to accept that the four days that we spent on witness testimony—the first day being the ministers—was a robust study of this bill. It wasn't. This bill and the people who appeared before it.... How about the people who didn't get to appear? How about the Canadians who didn't get to appear? They didn't have their say. I know some of them have been sending in briefs that help to inform us as parliamentarians.

We can't have the thinking that one group knows best or that one party knows best. We're not going to properly study things before making legislation. That cuts across party lines. It doesn't benefit any of us. It does a disservice to Canadians if we think we can do up a first draft of legislation, put a stamp on it and say it's good to go and it doesn't really matter what people have to say about it. Frankly, that's what we saw this time. I think four days was clearly not enough. We've been saying that all along.

Now we're studying it clause by clause, but we're studying it clause by clause with the limited benefit of the limited testimony we've heard. The testimony we have heard leads me to the conclusion that the safeguards that were in Bill C-14 should have stayed in Bill C-7. They should not have been stripped out. Further expansion of MAID in Canada should have followed only after a robust parliamentary study, as was contemplated in Bill C-14. We, as parliamentarians, have an obligation to put in those safeguards, which include review of the legislation, so that we can protect the people.

I believe everyone around the table wants to protect vulnerable Canadians. We may all have a different approach to that, but there's absolutely no harm in including a parliamentary review.

I support this amendment. I believe it sends the right message, and I think it will also help inform future parliamentarians on future legislation dealing with MAID. We, this group, this current justice committee here in November 2020, did not have the benefit of this type of review. I hope future parliamentarians do have the benefit of this type of review. That is why I am pleased to support BQ-4.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Moore.

Mr. Garrison, I have you next.

Go ahead, sir.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Madam Chair.

During the discussion of amendments I have limited my interventions because I think it's important that we deal with Bill C-7 so that the safeguards that Bill C-7 provides in the second track would be in place in the province of Quebec if the court decision does go ahead. I also think it's important because in my riding I know that there's much unnecessary suffering caused by the 10-day waiting period and by the inability to waive final consent.

That said, I want to speak to this amendment, because I share the concern that we need to do the broader study of medical assistance in dying, and not just Bill C-7. That's why I put a motion on the Order Paper earlier this fall calling for the creation of a special committee and expanding the mandate of that committee to include the question of whether safeguards for vulnerable people are in fact adequate in medical assistance in dying.

It was my hope that the House leaders could reach agreement to establish such a committee, but they have not done so. I hope that in our next session of committee business we can consider whether this committee can go ahead and begin that review and establish a time frame for that review.

The unfortunate consequence—unintended, surely—of Mr. Thériault's amendment is that it would provide the implication that we ought to delay this general review for another year, and I think that would be quite unfortunate, or that we have two simultaneous reviews going on.

For those reasons, as much as I want this general review to start, I am not in favour of Mr. Thériault's amendment.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

Mr. Thériault, I believe your hand is raised. Go ahead if you would like to respond to the comments made.

[Luc Thériault, Bloc, Montcalm, QC]

Yes, absolutely.

We did hold four meetings, yes, because the court granted us two extensions. We got them because, after the election, we did not get moving quickly enough. In an effort to respond quickly to the court order, the government decided to amend the MAID provisions by proposing two safeguards based on whether or not a person's natural death is reasonably foreseeable. That's the question I would like to put to a legal expert right now. Mr. Garrison just mentioned that, if we adopt this amendment, we would be obligated to conduct two reviews, perhaps simultaneously. I do not believe that. It just means that Mr. Garrison wants a special committee, and I want one too. We want a special committee and we are reiterating through the motion that “within 12 months after the day on which this Act receives royal assent, a comprehensive review of the provisions of the Criminal Code relating to medical assistance in dying...”—which means January, February, and March, because the bill will receive royal assent in December.

Mr. Garrison was talking about MAID, but Bill C-14 deals with provisions around MAID. So I do not see dual intent, except that the intent of parliamentarians is reiterated here, that it be done within the next year, no later than the next year, and that it last no longer than a year so that we can agree on what we need to add or not add to the MAID provisions.

BillC-7 therefore leaves out several factors that many people would like us to discuss. The decision was made to pass Bill C-7 quickly. However, the first thing I said at the beginning of this study was that, while we were debating, we had to always keep in mind that people were still suffering. During this pandemic, those individuals, the patients not infected with COVID-19, are bearing the brunt of all the disruption in the health care system.

Our deadline was extended twice, and we were required to act on a court order. I feel we need to reiterate to the government—especially since Mr. Garrison said the leaders would not agree on this—that we want to do this kind of study, as parliamentarians and as a committee. That's what the motion says. It doesn't contradict what is set out in section 10 of the MAID, although it is perhaps a little more specific. Nor is it exclusive. So I feel it's important to reiterate that and send a message to the executive branch: we must stop dragging our feet.

Because we don't anticipate court judgments and legal challenges ahead of time, and we don't do our job as lawmakers, court orders come back to haunt us as parliamentarians.

I feel that people expect us to be able to say that we're taking action on Bill C-7. In my view, a third extension would have been improper, considering those who are suffering. If we did not express our views on this issue here, we would again be leaving a note of uncertainty in the message we're sending to the executive branch, which, in my opinion, has a great deal of influence. I feel it's important that we're able to adopt this motion, and I'm even more convinced that it does not preclude the requirement in section 10, but that it clarifies, reiterates and completes it, in that it adds perspective and a time frame.

At the same time, it sends a message to all those waiting to challenge this in court. Remember what we were told: some will argue that we've gone too far and some will argue that we haven't gone far enough.

However, after the four days of parliamentary work we have just completed, we will be able to immediately send the message that Bill C-7 is a balanced response to a court order, and we, as parliamentarians, are thinking more deeply and at greater length about all the sensitive issues. It seems to me that issues as thorny as those we have been working on for a good number of hours must be handled in that way.

I rest my case.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Monsieur Thériault.

I have Mr. Cooper next on the list, and then Madame Findlay.

Go ahead, Mr. Cooper.