House of Commons Hansard #45 of the 42nd Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was medical.
The Assistant Deputy Speaker Liberal Anthony Rota
I would like to thank the hon. member for Montcalm, the hon. Minister of Transport, and the hon. member for Lanark—Frontenac—Kingston.
This matter will be handed over to the Speaker for deliberation, and we will get back to the House on this as soon as possible.
Marc Garneau Liberal Notre-Dame-de-Grâce—Westmount, QC
Mr. Speaker, all that being said, I would like to reserve the right to return to the House to make a further intervention on this matter.
The House resumed consideration of the motion that Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), be read the second time and referred to a committee.
Jane Philpott LiberalMinister of Health
Mr. Speaker, I am honoured today to speak following on the comments made by my colleague, the Minister of Justice and Attorney General of Canada, when she introduced Bill C-14, an act to amend the Criminal Code for medical assistance in dying.
This is a historic debate on a matter of tremendous significance for Canada and for all Canadians. Advancing this issue and getting a legislative framework in place to allow medical assistance in dying is a solemn responsibility. This a deeply personal issue for every Canadian.
When a dying person approaches the end of life, many more people other than just that individual are affected, including the person's family, community, and employer, as well as the people working in our network of social and health care services, those who provide support during our difficult times.
For many people, death is a difficult topic. Conversations about death are difficult to have, whether it is with a family member or, in particular, with a health care provider. This topic is difficult on both sides of the conversation.
Our government has given this matter careful consideration.
Over the past 30 years, I have experienced the reality of talking frankly and openly with, perhaps, hundreds of patients as they were facing death. Through every stage of the process, my patients have taught me valuable lessons, lessons about caring and compassion, about fear and anxiety, about the importance of support when recovery is no longer probable.
In working with patients in the final months and years of their lives, I have learned that every person, every story, is unique. However, much is shared in common: the hope to die in peace; the desire to be respected; and to have personal autonomy and dignity honoured by family and health care providers alike.
My experiences have also reinforced my sense that we must uphold the principles of palliative care, as well as respecting the rights of patients to make their own decisions about their care as they approach the end of life.
On February 6, 2015, the Supreme Court of Canada declared that the Criminal Code prohibitions on assisted dying were unconstitutional. The federal government was given one year to develop a federal framework to address this decision.
On January 15, the Supreme Court granted a four-month extension, to June 6 of this year, to give our government time to develop a legislative framework for Parliament to consider.
The Supreme Court's decision marked a watershed moment in an important and long-standing debate surrounding the right of Canadians to have the choice to a medically-assisted death. However, how it will be implemented, for whom and by whom, needs careful consideration.
As parliamentarians, we have heard from Canadians on this issue through so many conversations with our constituents and through the dedicated work of the joint parliamentary committee. Hundreds of experts and organizations, both in our country and abroad, have contributed volumes to our understanding of this very difficult subject. Many have spoken passionately about their work on the front lines of palliative care, hospice care, and end-of-life care. Others have talked about personal experiences with loved ones and about easing the physical and emotional pain that they experience.
Our government is grateful for the work of the federal external panel on Carter and for the work of the Special Joint Committee on Physician-Assisted Dying.
We have also benefited from the work undertaken in the provinces and territories on this issue, including the thoughtful recommendations of the expert advisory group on physician-assisted dying.
We are grateful to members of Parliament who have shared their own thoughtful, considered, and wide-ranging insights over the past few months and, indeed, years.
Our government has listened, and the legislation we are tabling is the product of their efforts and their collective wisdom and experience.
Today, we are taking decisive action. I think that it is good news for Canadians, including those who are facing this personal and very difficult choice, their families, and their care providers, who have all been carefully considering this legislation.
For people who wish to have the choice of seeking medical assistance in dying, Bill C-14 would allow that, in keeping with the Supreme Court of Canada's decision. This proposed bill is the product of careful consideration of several principles that guide our government, including the desire to support personal autonomy and access to health care services, while recognizing that it is imperative to protect vulnerable persons, individually and collectively, from coercion and disrespect.
With Bill C-14, certain health care providers would, under certain circumstances and conditions, be exempt from Criminal Code offences in order to allow them to provide or assist in providing medical assistance in dying.
The bill would clearly define the criteria that must be met for individuals to be eligible. We have set up safeguards to be followed to ensure that these criteria are met and that the request is truly voluntary. This is critically important to protect vulnerable populations and, frankly, to ensure that anyone who contemplates medical aid in dying has fully reflected on their choice.
We also create the foundation for a regime to monitor medical assistance in dying so we can see how it is working in Canada.
With this bill, we are demonstrating our government’s commitment to supporting the autonomy of patients who are approaching the end of their lives, while protecting the most vulnerable in our society.
There has been considerable focus on whether providers should be free to exercise their conscience rights. I want to underscore that this proposed legislation does not compel any health care practitioner to provide medical assistance in dying. Practitioners will have the right to choose as their conscience dictates.
However, we must also respect the rights of people seeking this procedure by ensuring that those providers who have expressed a preparedness to help patients can do so without fear of criminal prosecution. Under Bill C-14, certain health care providers, such as physicians and authorized nurse practitioners who administer medical assistance in dying would be exempt from criminal prosecution.
Since nurses and nurse practitioners have the authority to deliver many of the same medical services as family physicians, in that they can assess, diagnose, and treat patients, they, too, would be exempt from criminal prosecution.
This is critical, as nurse practitioners often work alone providing vital health care services in underserved areas, such as the most remote and rural parts of Canada. Other providers, such as pharmacists, registered nurses, and physicians who may provide assistance would also be exempt from criminal prosecution.
Therefore, rest assured that health care workers who provide and assist in providing medical assistance in dying will have no reason to fear criminal prosecution as long as they follow the appropriate safeguards.
In consultations leading up to this bill, there was strong consensus among Canadians that standardized data needs to be collected on the practice of medical assistance in dying.
In addition to Criminal Code amendments, this bill creates the power necessary for the Minister of Health to make regulations about the information to be collected, the use and protection of that information, and the processes for collecting and reporting that information.
We agree that a robust, transparent monitoring system on the practice of medical assistance in dying is essential, and analysis and trends need to be reported to the public on a regular basis. We, as the Government of Canada and Canadians, need to understand as much as possible about how the system is operating in practice so we can address any potential concerns.
To that end, this proposed bill commits the federal government to working with the provinces and territories to develop a pan-Canadian monitoring system. The system will allow us to collect and analyze data, monitor trends, and make recommendations for potential legislation and policy reforms.
We are not starting from scratch. Around the world in other places that have legalized medical assistance in dying, mandatory oversight systems are in place to carry out monitoring and public reporting each year.
We can look to these examples to help us decide what is right for Canada. We can also look closer to home, in Quebec, where a monitoring system was recently established.
Developing a robust pan-Canadian system with provinces, territories, and stakeholders will take time, and we know we need to be tracking this information as soon as possible.
From a health perspective, I feel strongly that it is important for us work toward consistency in the provision of health care services for all Canadians, regardless of where they live. Canadians and stakeholders are expecting and hoping for a pan-Canadian approach. They do not want a patchwork where they observe significant differences in quality and availability of services in their own community, province, or territory relative to other parts of the country.
A fundamental value in Canada is our commitment that Canadians across the country will have access to medically necessary health care services when they need them. This view reflects the underlying principles of universality, accessibility, and comprehensiveness so vital to our health care system.
Bill C-14 contains well-defined eligibility criteria and safeguards, which go a very long way to achieving our government's objective of a consistent framework for medical assistance in dying. While certain implementation details will be left to provinces, territories, and medical regulatory bodies, we will all operate under the same legal and access framework.
My health minister colleagues across the country have looked to us for leadership on a consistent approach for all Canadians. I am pleased that our proposed bill fulfills that expectation.
No aspect of what we do on the question of complementary measures should be done precipitously. There are several particularly challenging issues. On these, our proposed bill suggests a cautious approach that will seek further advice, as suggested by the special joint committee.
However, we also recognize that there is a difference between the decision to accept or forgo treatment and the decision to hasten one's own death. Accordingly, a higher standard of decision-making capacity should be required in the latter case.
As part of the eligibility criteria, the bill specifies that individuals must have reached the age of 18 to seek medical assistance in dying.
There is the equally if not more contentious matter of advanced directives. Advanced directives are used to indicate wishes for treatment if a person can no longer communicate.
The prospect of permitting requests for assistance in dying through advance directives is concerning to many Canadians. At the same time, others feel strongly that they should be able to convey their wishes for a medically-assisted death in advance of a future point time when, as in the case of a progressively debilitating condition such as dementia, they are no longer competent to make a request.
Advance directives are a difficult issue for many individuals, family members and health care providers. As difficult as it is to discuss the end of life ln the final days, it can be even more difficult to predict one's wishes and circumstances in the case where it is further off, especially in the distant future.
Many people are also troubled by the prospect of patients with a psychiatric disorder being eligible for assistance in dying on the basis of psychological suffering alone. There are strongly held views on both sides of this issue. That is why legislating medical assistance in dying has required a cautious approach, and that is why we have committed to independent studies to explore the challenging issues of mature minors, advanced directives, and mental illness further.
Following a period of study and further reflection, we will be better positioned to determine how these issues best fit into a Canadian framework for medical assistance in dying.
I believe that this is an approach that most Canadians would favour.
I said earlier in my remarks that this bill did not compel participation by health care providers to do anything which would run counter to their convictions. At the same time, we are also mindful that the exercise of conscience rights by providers may constitute a barrier to access for those who are seeking medical aid in dying. There is therefore a federal interest on behalf of Canadians in working with our provinces and territories to support access.
Collaborative work with provinces and territories could build on important international examples, such as the well-established networks we see in the Netherlands and Belgium. These provide insight as to how an end-of-life care coordination system could help facilitate access to a consulting physician or nurse practitioner. This is particularly important in rural and remote areas, or in situations where identifying a second provider to assess eligibility may be problematic.
One of the things I have heard is that better palliative care would assist in the end-of-life care options that have now been prescribed by the Supreme Court. I know first hand that there is a place and a need for both.
Palliative care focuses on relieving suffering and improving the quality of life for the living and dying. It provides relief to people dealing with a range of life-threatening conditions such as cancer, cardiovascular disease and amyotrophic lateral sclerosis, or ALS.
Today, Canadians are aware, and have a general understanding, of palliative care. However, some studies have found that the overwhelming majority, perhaps 70% or more of us, do not have access to it, particularly in rural and remote areas. Many providers are not well trained to provide palliative care services. Reinforcing this government's commitment to quality palliative care, this proposed bill signals our intent to support improvements to a range of end-of-life care services.
Like other health care services, the delivery of palliative care is mainly the responsibility of provinces and territories. However, the federal government can make significant contributions in this area. We are already supporting a number of initiatives aimed at improving capacity in our health care system to provide palliative care.
In partnership with the provinces and territories, health care providers, and non-governmental health organizations, the federal government has funded initiatives designed to advance palliative care awareness, education, national standards, and research. For real improvements to be made, we need to work closely with provinces and territories.
Since my appointment as the Minister of Health, it has been my immediate priority to reach out to provinces and territories to discuss needed transformation in our health care system, including care at the end of life, particularly in the setting where Canadians say they most wish to die; that is usually in their own home and community.
In that spirit, early this year I met with provincial and territorial health ministers in Vancouver to launch discussions on a new multi-year health accord. Through the health accord process, our government will be making significant investments totalling $3 billion to help deliver more and better quality home care services for Canadians.
We expect that support for palliative care in a variety of settings, where patients can receive the ongoing care they need and deserve at the end of life, will be one of the priorities going forward.
I believe that by working together, we can bring real change to the health care system so that Canadians can continue to have access to high-quality, sustainable care.
There is no doubt that care at the end of life should be there when people need it. We want all Canadians to have access to the best care possible. We want them to have autonomy in making decisions as they approach the end of their lives.
We are facing a challenging time frame to put this legislation in place, with a June 6 deadline. However, I believe that with this proposed bill, we have found a balanced approach that reflects the best interests of Canadians. That is why I urge all members of this House to support Bill C-14.
Gérard Deltell Conservative Louis-Saint-Laurent, QC
Mr. Speaker, I have some serious questions, especially for this minister.
Just now, the minister said that doctors' conscience was protected. I was very surprised to hear that. I did not read that clause. I would like the minister to tell me exactly which clause says that doctors' conscience will be protected.
Each and every one of us understood that, going forward, the provinces would define protection for doctors, which means that there could be 10 different interpretations. That is not a good thing. This is a federal Parliament, and we must act on behalf of all Canadians.
I have a second point I would like to raise. If there is to be protection for doctors' conscience, which we want, why not follow the Quebec model, which allows a third party to transfer a patient to another doctor? In other words, if the attending physician who does not want to treat the patient informs a third party, such as hospital or CLSC officials, the third party can transfer the case to another doctor.
I have two questions: Can the minister tell me exactly which clause in the bill protects doctors' conscience? Why not follow the Quebec model?
Jane Philpott Liberal Markham—Stouffville, ON
Mr. Speaker, as my colleague knows, this is a bill to amend the Criminal Code. As such, the bill is prepared in that format.
As he well knows, the matter of the care and delivery of care falls into the realm of provinces and territories.
I have made the commitment to work with my colleagues, the ministers of health across the country, to ensure that they understand that no health care providers should be required to provide care, that they should respect their conscience rights, but at the same time to make sure that all Canadians will have access to all options of care. I am prepared to work with them.
We have made the commitment to develop a pan-Canadian approach to care coordination at the end of life to make sure that all Canadians will have access to care.
We have deemed, through the tabling of the bill, to demonstrate that this is a medically necessary option for care at the end of life. I will work with my colleagues across the country to make sure it is there for Canadians.
Murray Rankin NDP Victoria, BC
Mr. Speaker, I commend the minister, as well as her colleague, the Minister of Justice, for their leadership on this very sensitive issue.
Aside from the issue of advanced requests and the issue of the unfortunate drafting of the bill, the issue I hear most about is the failure in this initiative to specifically commit to palliative care.
The minister has given words on that subject again today, but we note that there was nothing in the budget, despite campaign promises to that end.
I would ask the minister this. Would she consider restoring the secretariat on palliative and end-of-life care, and the development of a fully funded pan-Canadian palliative and end-of-life care strategy, in collaboration with provinces, territories, and civil society?
Jane Philpott Liberal Markham—Stouffville, ON
Mr. Speaker, that is an important question from the hon. member. I have reiterated, as he said, our commitment to ensure that we improve access to palliative care. Indeed, it would be my desire to see that every Canadian should access high-quality palliative care at the end of their life to give them that opportunity.
I often quote Dr. Atul Gawande, who talks about the fact that people not only need to have a good death, they need to have access to a good life to the very end.
This is extremely important to me. I will be working with the provinces and territories. I have already been working with my department. We will be investing in home care, and we will determine that all the necessary investments are in place. I am exploring all opportunities for how we can ensure that commitment is upheld and that care is available to Canadians.
Sean Casey Liberal Charlottetown, PE
Mr. Speaker, I thank the minister for her thoughtful speech and for her leadership on this extremely sensitive issue at an historic time for Canadians.
Much of what falls within the health domain is within the jurisdiction of the provinces. There is no question that the provinces are looking to the federal government for leadership.
Given the very compressed time frame that we have, I wonder if the minister could comment on the importance of the June 6 date with respect to the matters within the provincial domain. There is no question that the June 6 date is critical with respect to the matters that fall under the criminal law, but what is the significance of that date? Is it as important for the matters that are within the minister's jurisdiction?
Jane Philpott Liberal Markham—Stouffville, ON
Mr. Speaker, the hon. member has raised an important matter, and that is the reality that we need to have a legislative framework in place.
The provinces and territories have spoken to me loudly and clearly about their desire to make sure we have a consistent approach across the country. That came up in my meeting with health ministers in January. Since the bill has been tabled, my colleagues have told me they are pleased that it provides that framework for them. They have already done a tremendous amount of work across the country in determining their next steps. They have been working with regulatory bodies, and those regulatory bodies have put in place a number of measures to make sure that Canadian health care providers are educated and prepared for the changes the bill will put in place.
The June 6 deadline, no doubt, is an important one. That is why I urge all members of the House to support the bill, so that we will have a legislative framework that will provide that access to consistent care across the country.
Scott Reid Conservative Lanark—Frontenac—Kingston, ON
Mr. Speaker, the minister in her comments said that nothing in the bill compels health care professionals to participate in assisting with a death. She also stated there is a federal interest in ensuring that nobody is denied access to medically assisted death. This raises a problem. A charter right to something cannot be withheld by someone else who is either a government agent, or is operating within the purview of a set of rules that gives them a monopoly over providing access to that right.
The minister could correct this problem. It will essentially cause the courts to require health care professionals to provide assisted death against their own consciences and will, unless the following change is made. She could add a specific protection to the law that would meet the section 1 charter requirement. It says that the rights and freedoms set out in the charter are subject only to “such reasonable limits prescribed by law”, which means statute, “as can be demonstrably justified in a free and democratic society”.
If the minister did that, there will be protection for physicians. If not, it is only a matter of time before the courts require physicians to provide assisted death. That will result in terrible crises of conscience for physicians who would not want to do that based on their profoundly held moral beliefs.
Jane Philpott Liberal Markham—Stouffville, ON
Mr. Speaker, I look forward to further conversation with the member about this matter. I will continue to discuss this with my colleague the Minister of Justice as well.
I want to make sure that the member understands that physicians and other care providers make deeply complex decisions every day. They approach their work with thoughtfulness. They approach their work with their conscience intact. They will need to be able to continue to do that. We need to make sure that those conscience rights are protected, as they are now. We also know that Canadians need to be able to have access to this care. Those physicians and care providers will undertake to make sure that care is transferred, in the situation where they are not able to provide a certain type of care for any reason, including the reason of conscience rights.
I am determined to work with my colleagues across the country, with the Canadian Medical Association, the Canadian Nurses Association, to make sure that this is well understood, that we find mechanisms to make sure there is a care coordination system, so that no one will be denied access to medically necessary care.
Pierre-Luc Dusseault NDP Sherbrooke, QC
Mr. Speaker, I thank the minister for her speech.
She recognizes that the right to physician-assisted dying is a constitutional right in light of the court's recent decision. That is what she said. She also wants to protect physician conscience rights. Speaking of which, what mechanism will she put in place to ensure that every Canadian has the constitutional right to physician-assisted dying, while also protecting doctors' rights to choose whether to engage, or not engage, in this practice?
This service must also be made available in places where there are very few doctors and very few medical services. What mechanism does the minister intend to put in place to ensure that all Canadians have equal access to this new right?
Jane Philpott Liberal Markham—Stouffville, ON
Mr. Speaker, I look forward to further conversations with my colleague about this.
If there is anything we heard loud and clear, in a uniform way across the country, it was the matter of respecting the conscience rights of health care providers. We will continue to make sure that is upheld.
Members have also heard me say repeatedly in the House that I believe Canadians need to have access to all forms of medically necessary care across the country. That is a fundamental principle upheld by the Canada Health Act, which I will continue to uphold.
Murray Rankin NDP Victoria, BC
Mr. Speaker, I am thankful and, to be honest, humbled by the opportunity to join this important debate.
Yesterday a group of high school students were visiting from my riding, and we talked for a few minutes about this debate and what would unfold in their Parliament. I told them that we were about to tackle one of those rare questions in the social and political life of a country, watershed moments, where we can translate our values into a law and touch the lives of Canadians in a profound way. I believe that this is one of those moments.
Let me say at the outset that I will be supporting this bill at second reading. New Democrats have decided that rather than seek consensus on a question so personal, we will be encouraging our members to take the time to consult with their constituents, to reflect carefully on this bill, and to vote with their conscience. Let me affirm my deep respect and admiration for members, wherever they sit in the House, who rise to express views that may differ from the views that I have on this bill.
I am reminded of something a former Conservative member of the House said when he appeared before the joint special committee. At the end of his eloquent and moving testimony, he stopped, looked around, and said, with his usual knack for not pulling any punches, “By the way, everything you decide here will affect every Canadian who is alive and every Canadian there will be in the future, and it will probably set the framework for the western world, so think about it.”
Let me say to Mr. Fletcher, to the young constituents who visited me yesterday, and to every Canadian who will follow this important debate in living rooms, law offices, and hospital beds, that I have every confidence that Parliament will give this bill the careful scrutiny it needs and the respectful debate that it deserves.
We are here because of the Supreme Court's unanimous ruling in the Carter case. The case was long and complex, but the decision was crystal clear. It states:
[...] s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.
That is what the court concluded. It is noteworthy for its humanity. It does not force doctors or bureaucrats to parse a patient's suffering, or weigh precisely how much pain and fear is tolerable and how much is intolerable. Instead, it recognizes the ability, indeed the right, of competent Canadians to decide for themselves when their suffering becomes intolerable in the circumstances of their condition.
In fact, the next line of the judgment goes further, recognizing the right of those competent Canadians to define what treatments may be unacceptable for them. It states:
“Irremediable”, it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.
In just seven lines, the Supreme Court of Canada, the highest court in our land, affirmed that competent adult Canadians could consent to the termination of life, could define uniquely and for their life what intolerable suffering means to them, and could define to a large degree what an irremediable condition means to them, respecting their right to refuse treatments they determine to be unacceptable. Not only did the court unanimously affirm the right of competent Canadians to make their choices, it found two provisions of the Criminal Code unconstitutional insofar as they prevent eligible individuals from doing so.
Let us remind ourselves of the meaning of that word “unconstitutional”. In explaining such a finding in the Constitutional Law of Canada, Professor Peter Hogg quotes a U.S. justice to say this:
An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.
Professor Hogg continues:
When a court holds that a law is unconstitutional, the invalidity of the law “does not arise from the fact of its having been declared unconstitutional by a court, but from the operation of [the supremacy clause of the constitution]”.
In principle, he said that the law is “invalid from the moment it is enacted”. The fact that the Supreme Court delayed the effect of its ruling in the Carter case does not detract from the force of that finding of unconstitutionality.
The court did not request that Parliament pare back the prohibition against assisted dying in these cases to a less intrusive level. It demolished the legal barriers that denied Canadians the choice as completely as if they had never been built.
The court then wrote:
It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.
That is what we are here to do, to measure this bill against the constitutional parameters illuminated for us by our Supreme Court.
I was proud to serve on the joint special committee on physician-assisted dying.
I worked on that committee with my extraordinary colleague from Saint-Hyacinthe—Bagot. I thank her for her many hours of work and for her in-depth knowledge of Quebec law. Her wisdom greatly improved our report.
Together with parliamentarians of all official parties and both chambers, we reviewed the Supreme Court judgment and the provincial court decision that preceded it. We looked at laws in Quebec and around the world. We reviewed two major studies, which together heard from 13,000 Canadians and more than 100 organizations. We held 11 hearings. We called 61 expert witnesses and took written briefs from individuals and groups from all across this country.
That committee had a duty, in my view, to make recommendations for all Canadians and to consider all the situations that might arise in the coming years, and seek clear answers, founded on the law, on medical evidence, and on our shared values.
I am so thankful to all members of that committee for their work, for their commitment to respect the collaboration beyond and above party lines, and for their dedication in helping Parliament pass a law that does respect the constitutional parameters set out by the court, indeed, a law for all Canadians.
Based on that broad consultation and that evidence, and a strong majority spanning both chambers and all parties, we agreed on 21 recommendations to ensure that eligible Canadians have the option, and to protect individuals in situations of particular vulnerability.
These recommendations were not made lightly. Each was made after lengthy discussion with an eye to the future. Each was rooted in careful consideration of the evidence, the requirements of the Carter case and of our Charter of Rights and Freedoms, and of course the rights of suffering Canadians.
I must be honest at this point. I was deeply disappointed to find the majority of recommendations of the all-party committee either missing from or contradicted by the provisions in the government's bill.
The all-party committee recommended that the law use the exact words of the Supreme Court. This bill would cloud those words with new and very vague and ambiguous restrictions. Let me pause on that point.
Without delving into the details, let me share two concerns about an area so crucial that, in my view and in the view of many experts who have called me, it inappropriately narrows the scope of the entire bill.
First, this bill would limit its scope to medical conditions that are “incurable”, a word the Supreme Court did not use and a requirement it did not set. While the court was quick to make clear that it would never force patients to undergo unacceptable treatments to prove their condition was irremediable, no similar direction is found in this bill, none.
It would seem to compel patients to undergo treatments that they would object to in order to be eligible for assistance in dying. That could prove to be cruel and unusual and in itself contrary to the charter.
Second, the bill limits its scope to patients facing what it terms a “reasonably foreseeable” natural death, another requirement found nowhere in the decision. In fact, this concept was never raised once before us by any witnesses in the all-party committee; nor, as far as I can tell, does it have any precedent in any jurisdiction. It is not hard to see why. After all, it is almost hopelessly ambiguous.
Does it mean a death that is imminent, or simply one that we can predict with confidence? The government has provided a glossary that suggests “foreseeable in the not-to-distant future” or “on a trajectory toward death”, but of course those terms could be applied to every single one of us.
I want to read the conclusions of one of Canada's most revered constitutional lawyers, Joseph Arvay, QC. He stated:
As the lead council in the Carter case, I probably know better than anyone the evidence led, the arguments made, and the full implication of the judgements at all levels and I have no doubt that the Bill, if enacted, would be struck down as unconstitutional insofar as the “foreseeability clause” is concerned and perhaps other clauses as well.
Given that the Department of Justice lawyers did not prevail at the Supreme Court of Canada and the case was decided unanimously against their position, I assume the minister has a comprehensive legal opinion from outside council. Will she table that opinion at the justice committee? Will she force desperately ill Canadians to have to go to the Supreme Court again?
These restrictions that have no root in the Supreme Court decision are so fundamental that they affect the scope of the bill itself. However, they are not the only ways in which the bill seems to reject the advice of our committee.
The all-party committee recommended that the law not exclude patients who completed a valid request in advance of losing their capacity. The bill would offer those Canadians nothing but the cruel choice the court spoke of, the choice between a death they consider premature and the rising fear of a life they consider intolerable.
The all-party committee agreed that indigenous patients should be given the option of culturally and spiritually appropriate end-of-life and palliative services. It agreed that mental health services and supports for all Canadians must be improved immediately. It agreed that far too few Canadians can access the quality palliative and end-of-life care they deserve, and it identified concrete steps for the government to take on every one of these priorities for Canadians, and yet the bill contains nothing binding on any of these. There is not one dollar of new funding, not one commitment or timeline.
Of course there are those who ask us to be patient, who say this is just a first step. However, incremental change offers cold comfort to those suffering intolerably today. Nor does our charter allow unconstitutional provisions to be made right by degrees, by steps.
There are those who say that, while improving palliative care, or obeying patients' advance requests, or protecting the conscience rights of health care workers are good ideas, they were not named in the Carter ruling and so cannot be included in the bill, but neither did the case mention nurse practitioners, or record keeping, or witnesses, or multiple doctors, all of which are addressed in the bill.
These are all good and practical steps. Indeed, many are recommendations of the all-party committee, so we must replace a conveniently selective attention to the Carter decision with a consistent commitment to the charter rights and health care priorities of all Canadians.
The reality is that this moment is not going to come again. Canadians are counting on us to get it right now. That means abiding by the letter and spirit of the Supreme Court ruling and strengthening the bill against obvious challenges to its charter compliance.
It means taking real action on the priorities that Canadians recognize that are connected, including better mental health services and more accessible palliative and end-of-life care options for everyone.
Specifically, I urge all members to consider recommendation 19 of the all-party committee, which called for the re-establishment of the secretariat on palliative and end-of-life care and the development of a fully funded pan-Canadian palliative and end-of-life care strategy in collaboration with the provinces, territories, and civil society.
As anyone who has sifted through the mountain of evidence on this issue can attest, it is easy to get lost in the details, but at the end of it all, we are called to a question of principle. It is a principle reflected in the words of Mr. Justice Binnie in another ruling, which I paraphrase here. He said that, while we may first instinctively recoil from a decision to seek death, it is clear that it can arise from a deeply personal and fundamental belief about how we wish to live. We are asked to consider in what circumstances we can deny adult competent Canadians suffering intolerably from a grievous medical condition the right to make these fundamental decisions, the choices in Carter of what constitutes intolerable suffering, and which treatments are acceptable.
This is about choice. Canadians want options when they near the end of life or when they find themselves trapped in intolerable suffering. In my view, the bill before us denies that to too many Canadians, in too many cases, with too little justification.
By leaving unresolved so many of the tensions that play in the Carter case, the bill invites immediate challenges on similar grounds. These court battles would necessarily engage the full legal resources of the government against the arguments of the most weak and vulnerable Canadians imaginable. That is not what Canadians want. We do not need more conflict, division, or delay. What we need is constructive compromise, and what we insist upon is compliance with the Supreme Court of Canada's unanimous decision.
No government can be expected to pre-empt every challenge to a new law, but a government can at least be expected to recognize that a Supreme Court of Canada decision is not a recommendation. It can do better than try to drive a square peg into a round hole.
We can do better than altering the careful words of our Supreme Court of Canada. We can do better than flatly contradicting the evidence of experts and the advice of parliamentarians from all parties and both chambers.
We can do better than excluding patients whose valid request is approved but who lose capacity just before it can be acted upon. We can do better than condemning those people to intolerable suffering because, of course, their condition did not match the letter the bill.
Finally, I believe we can do better than offering only non-binding promises of more discussion on issues that are as urgent as giving every Canadian the mental health services they need and the options for palliative and end-of-life care they richly deserve.
I truly believe what I told those young people from Victoria yesterday. This is a moment that will not come again for us as legislators.
We have a duty to see the House pass a bill that respects the Carter decision, that respects our Charter of Rights and Freedoms, and that accords with the priorities of Canadians. Sadly, in my judgment, the bill before us is not that bill, but it can be.
Therefore, let us give it the study it needs and the debate Canadians deserve. Let us make whatever changes are needed to meet those standards. Let us do this work together, let us get it right, and let us work assiduously for all Canadians to get it right
Arnold Chan Liberal Scarborough—Agincourt, ON
Mr. Speaker, I want to thank my hon. colleague, the member for Victoria, for a very impassioned speech and a very important contribution to the debate. I particularly take note of his objections, despite the fact that he has expressed his ultimate support for the legislation that the government has introduced in Bill C-14.
I want to specifically get to one of the objections that he raised, which deals with the question about the foreseeability clause.
He noted that the lead counsel in the Carter decision, Mr. Joseph Arvay Q.C., raised concerns with respect to the constitutionality of the proposed Bill C-14. I want to ask my friend what proposed changes would be necessary so that the definition of reasonable foreseeability, currently found in proposed paragraph 241.2(2)(d), would deal with the legal standard. I believe that is the nature of his objection.
I would add the caveat that, as I recall the Minister of Justice's presentation at the time, the determination of reasonable foreseeability would be left to physicians. Is there some amendment you could propose that would in fact address the legal standards, which I think is the nature of the objection?
The Assistant Deputy Speaker Liberal Anthony Rota
I would like to remind hon. members to appreciate that they are speaking through the Speaker and not directly across the floor.
The hon. member for Victoria.
Murray Rankin NDP Victoria, BC
Mr. Speaker, this is a very fundamental question that goes to the difficulty at the heart of this.
I want to be clear when referencing Joseph Arvay, who many consider the leading constitutional lawyer of his generation, that I do not mean to stop there. I have heard this concern about “reasonably foreseeable” from people from coast to coast, eminent jurists whom I respect enormously.
I would say the simple solution is to do what the Supreme Court told us, which is to simply use the words of the decision, the words “grievous” and “irremediable”. I do not know that anything has been added. I know a lot has been taken away by the definition that is there. I am hoping that the government is open to reasoned debate and amendments that are in the same spirit that we worked in under the joint special committee.
I believe we can do better. This clause is beyond comprehension to jurists of the highest quality and reputation across the country. Why is it there? It comes from nowhere. It comes from nowhere in the decision. It comes from no other jurisdiction that we have been able to find. All it would do is create uncertainty. Does “reasonably foreseeable” mean solely in time? Does it mean about conditions? Nobody knows.
It is that uncertainty that doctors are telling me they cannot accept. Therefore, they will be reluctant to provide the services until they get the kind of certainty that we tried in the committee to provide, and which Canadians will need. Those who are advising and insuring physicians and medical practitioners are certainly going to need more than words like “reasonably foreseeable”.
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
Mr. Speaker, I was pleased to hear the minister talking about international comparisons. One of my disappointments with the Special Joint Committee on Physician-Assisted Dying was that we did not do a sufficient study, at all, of what has happened in other jurisdictions where we have seen these laws brought in.
Specifically, I want to talk about a study that was done in Belgium in 2010, which was quoted in the Canadian Medical Association Journal. It surveyed nurses and found that a full 120 of 248 of them said they had been involved in cases of euthanasia where there was no consent. Of the 248 nurses who had been involved in euthanasia, almost half of them had been involved in cases where there was no consent. Yet, the direction we are going with this legislation, and the model that I know the member advocates, because it follows the special joint committee, is very similar to the Belgian model.
I would ask the member why Canada would follow Belgium when there have been significant problems with actual consent. Why do we not look at jurisdictions that have been more effective and put in place things like advanced legal review?
Murray Rankin NDP Victoria, BC
Mr. Speaker, I thank my colleague for the question and for his work during the deliberations of the special joint committee.
The Belgian study to which he refers is one of many studies. In the judgment at the trial level of the B.C. Supreme Court, which is several hundred pages, Madam Justice Smith referred to these studies and others like them. She concluded that we can do better in our bill. She concluded that it was appropriate that the constitution reflect that competent adults have the ability to use physician-assisted dying, medical aid in dying, when they meet the very specific and stringent conditions that were articulated.
Consent is at the core of this. One has to be careful that there is consent that has not been pressured in any way. I think the bill does a good job of addressing that.
The idea of having some kind of advance legal requirement for consent determination and the like was rejected by the committee because it would be an absolute barrier to many people, particularly in remote communities, from being able to have the choice that the Supreme Court said Canadians constitutionally enjoy.
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Mr. Speaker, I would like to commend the member on his very thoughtful speech today, and thank him for the work that he did on the Special Joint Committee on Physician-Assisted Dying along with the member for Saint-Hyacinthe—Bagot on behalf of our caucus. The committee was so ably chaired by the member for Don Valley West, whom I also wish to thank for his work on behalf of this chamber.
My question has to do with conversations I had with two constituents who are facing the issue of physician-assisted dying, and the case of my own mother last fall. This has to do with the advance consent notion.
I am going to use the case of my mother because I know it so well. She had medical conditions that were going to lead her to a position where it was going to be difficult to continue living, and she also had dementia. She wished to give consent in advance before the dementia got so bad that she could no longer give consent. When her other medical conditions advanced, she was no longer competent, so we were faced with very difficult decisions as a family, but what we did know was her very clear statements before of what she wished to have happen.
How would the bill deal with very difficult situations like this? Did the Supreme Court decision deal with these kinds of cases?
Murray Rankin NDP Victoria, BC
Mr. Speaker, first, I say to my friend from Esquimalt—Saanich—Sooke that I am sorry for the loss of his mother.
I want members to know that the bill would not do anything about that. It is a sad deficiency that I keep hearing about day after day in my office. People will not be allowed to determine, even if they have the very condition that they feared the most, dementia, Alzheimer's, and the like, what will happen at the end of their life.
We have the terrible situation, with real-world examples from British Columbia, where a person who worked all her life nursing people with dementia said, “I do not want that to happen to me, being spoon-fed and in diapers in an institution”. Contrary to her expressed wishes, this bill will do nothing to address that. That is the deficiency I hear most about in my riding as well.
Most Canadians asked for that. The polls are absolutely clear that the circumstance my colleague recounted is precisely what people fear, and this bill sadly will not do what the recommendation of the joint committee and others have urged us to do, namely, to provide in circumstances where people delineate precisely when it is time for that physician-assisted dying to take place. There will be no opportunity to do that. We can do better. We must do better.
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
Mr. Speaker, I have a quick follow-up to the member's previous response. I do not think it is a good response at all to say there have been other studies without actually quoting them.
We have seen significant studies from Belgium and other Benelux countries that show that without an effective system of advance legal review, which need not be onerous, and one suggestion has been to use consent and capacity boards which already exist at the provincial level, a simple system of not onerous advance review could be added to this legislation which would ensure that we do not go down the road that many of the studies have shown us going down in the Benelux countries. What is wrong with adding that basic protection?
Murray Rankin NDP Victoria, BC
Mr. Speaker, I appreciate the opportunity to be more specific.
Advance legal review would be an absolute barrier for many people, particularly in remote communities. I have confidence in doctors. Doctors do these things every day. They look after us in life, and I trust them to look after us in the last days of our life as well. To talk about a consent and capacity board which one province has and others do not is not helpful. We need to figure out how we can do this. We are absolutely required to address the needs of the vulnerable, but we cannot provide an untenable barrier to people whose constitutional rights are affected. That would not work, and we would oppose such an amendment.
The Assistant Deputy Speaker Liberal Anthony Rota
Resuming debate, the hon. member for Sherwood Park—Fort Saskatchewan. I just want to remind the member that he has about four minutes and thirty seconds, and the balance of his time will be returned to him when this issue comes before the House again.