Mr. Speaker, I rise in this House to address the opposition motion concerning the conscience rights of health care professionals.
The motion directly relates to Bill C-14, a historic piece of legislation that would create a legislative framework governing the provision of medical assistance in dying.
I call this legislation historic because with its enactment, Canada would not only become one of the first jurisdictions in the world to permit medical assistance in dying, but also, even among this small group of countries, we would be one of the first that does so in the context of a federal system of government.
I am mindful of how important the issue of conscience rights is to health care professionals, as well as many groups who have made representations on their behalf.
In the Carter case, many of the intervenors who participated in the litigation raised the issue of conscience rights, including, as noted by the Supreme Court of Canada in paragraphs 130 and 131 of its decision, the Canadian Medical Association, the Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project, and the Catholic Health Alliance of Canada.
As the Supreme Court said clearly in its decision, nothing in the court's declaration would compel a physician to provide medical assistance in dying.
Following the Carter decision, the theme of conscience rights featured prominently in the consultations conducted by the federal external panel. Many individuals and organizations made submissions and participated in this process to ensure their perspectives on conscience rights were heard.
The panel's final report noted that while the medical profession is divided on how exactly conscience rights should be protected without compromising patient access, stakeholders were unified in the view that physicians' and other health care professionals' conscience rights must be respected and that those who choose not to participate must not face negative repercussions.
The report of the provincial and territorial expert advisory group which was released in December of last year shows that it also received significant input about, and carefully considered, the conscience rights issue.
When the special joint committee of the House of Commons and the Senate conducted its own study of medical assistance in dying in January and February of this year, conscience rights continued to be front and centre. Numerous witnesses raised it, and the issue was addressed in the committee's report.
Following the introduction of Bill C-14, I have closely followed the Standing Committee on Justice and Human Rights' study of the proposed legislation, as well as the Senate's pre-study, which have both heard significant evidence from many people and organizations about conscience rights.
For example, I am mindful that the House of Commons committee stakeholders were from various diverse backgrounds who held a broad spectrum of views on medical assistance in dying generally supported conscience rights. Individuals and organizations motivated by their faith traditions, including the Evangelical Fellowship of Canada, the Canadian Council of Imams, the Centre for Israel and Jewish Affairs, and Cardinal Thomas Collins all spoke eloquently about why the legalization of medical assistance in dying, which is intended to respect the charter rights of eligible patients, should not have the uncomfortable consequence of violating the charter rights of health care professionals.
Representations from professional organizations, such as the Canada Medical Association, the Canadian Pharmacists Association, the Canadian Society of Palliative Care Physicians, and the Canadian Medical Protective Association also emphasized the need for conscience rights protections not only through legislative measures, but also via a system that would ensure that the patient is not abandoned in his or her hour of need, and would connect the patient with willing providers.
Not everyone agrees on all issues that are posed in medical assistance in dying; however, there is general consensus that the conscience rights of health care practitioners must be taken into consideration as we introduce this practice into our society.
As the Minister of Justice and Attorney General of Canada, I want to express my sincere appreciation to each and every one of these persons and groups, as well as the members in this House who have been so vocal on the issue of conscience rights for contributing to a national conversation on medical assistance in dying.
I am keenly aware that it takes significant time, energy, and effort to prepare and present submissions, whether it is before the courts, consultative bodies, or committees. Rest assured their voices have been heard.
In a moment I will turn to the issue of how the government's approach to medical assistance in dying reflected in Bill C-14 respects the conscience rights of health care professionals and respond to the member opposite's motion.
First I want to take the opportunity to say a few words about the bill and how it respects all rights guaranteed under the charter, including conscience rights. I will say more about this when the bill is reported back by the committee for third reading debate.
At the Standing Committee on Justice and Human Rights as well as in the Senate as part of the legal and constitutional affairs committee's pre-study of the bill, parliamentarians heard from some who have expressed concerns that Bill C-14 falls short of complying with the charter. At the same time, we have also heard from other constitutional experts who have said that given the recent developments in the law, the bill is charter and Carter compliant.
Given all these diverse opinions, the key takeaway here is that nobody has a monopoly on interpreting the charter and nobody can predict with certainty whether a piece of legislation will some day be considered by the courts. Furthermore, many of those who seem certain that this law will be struck down do not acknowledge that Bill C-14 is not the same as the previous criminal prohibition that was struck down.
Let me be clear. This proposed legislation permits medical assistance in dying to an overwhelming number of those who are expected to seek it, namely, those who are nearing or who are at the final stage of life. Data from places where assistance in dying is lawful bear this out. Make no mistake that Bill C-14 would provide access to the vast majority of Canadians who would seek to access it.
At the same time that Bill C-14 permits access to the majority of those who would want it, it would not allow any and all Canadians to access it. It limits access in accordance with the legislative objectives that are stated in the preamble of the bill. These new legislative objectives were not part of the old law. Accordingly, the new legislative objectives change the charter analysis which has not been acknowledged by those who say that Bill C-14 will be struck down.
Even the justices of the Supreme Court themselves cannot pronounce on the constitutionality of legislation until they have a real case before them that is supported by a fulsome evidentiary record and submissions from counsel. This is especially true on issues as complex and sensitive as medical assistance in dying with so many different compelling, competing and important interests.
At the end of the day, the responsibility rightly falls to Parliament to enact a law that is consistent with the charter and which meets the needs of Canadians, striking a fair balance between all the diverse interests that are at stake. As the Supreme Court stated in Carter, any legislative regime will be shown a high degree of deference by the courts. In the context of medical assistance in dying, conscience rights raise distinct and nuanced constitutional issues.
First and foremost, it is critical to note that since the repatriation of the Constitution in 1982 and the enactment of the Charter of Rights and Freedoms, all statutes, whether they are adopted at the federal or provincial and territorial levels, must comply with the charter.
Indeed, as trite as it sounds, we must remember that charter rights do not come from provisions in a given law or regulation. They come from the charter itself. Nothing is gained by having an ordinary statute confirm or affirm charter rights. It is a recognized principle of statutory interpretation that courts should endeavour to interpret and apply laws in a manner that is consistent with the charter and its values.
Whether or not Bill C-14 or any other legislation that is proposed says something specific about charter rights, including conscience rights, it does not mean that such rights are not protected. On the contrary, as the charter is part of our Constitution and the supreme law of the land, such rights are always protected and can only be limited in accordance with the Constitution, such as under section 1 of the charter which allows for reasonable limits that can be demonstrably justified in a free and democratic society.
Therefore, strictly speaking, legislation does not need to restate rights that are already guaranteed in the Constitution, and nothing is gained in terms of charter protections by restating it from a legal point of view. However, in terms of public understanding, I do appreciate that legislative statements referring to charter rights can alleviate the comfort level of those who are affected by the law. I will say more about that in a moment.
Second, but equally important, legal consideration that informs how we must approach conscience rights is the other pillar of our constitutional framework, which has been with us since Confederation. Of course, I am referring to the division of powers between the federal and provincial governments.
When it comes to medical assistance in dying, the Supreme Court of Canada in Carter recognized that the division of powers was implicated when it said, in paragraph 53, that:
Health is an area of concurrent jurisdiction [and that] aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation.
In other words, while health might be, broadly speaking, an area of concurrent jurisdiction, the specific context still matters.
With respect to medical assistance in dying, the major federal authority to legislate in respect of health comes from the criminal law power. That power is concerned with preserving public safety as well as conveying norms about what conduct should attract the most serious sanctions available in our society.
In respect to medical assistance in dying, the main federal role is to ensure that legalization of the practice takes place in a manner that minimizes the risks to the vulnerable and that supports other crucial societal objectives, such as affirming the inherent value of all Canadians' lives, supporting suicide prevention, and promoting the maintenance of a just and peaceful society more generally. This is why Bill C-14 creates criminal law exemptions for medical assistance in dying so that health care providers can lawfully participate in the termination of human life while maintaining criminal prohibitions against such conduct in other situations.
In contrast, while the federal government administers some aspects of health care, for example, to first nations who have not assumed responsibility on reserve, and federal prisoners, provinces have primary responsibility for the delivery of health care and the regulation of professions, including health care professionals, such as physicians, nurses, pharmacists, and others. They also have responsibility for health care institutions, including hospitals. This is because things fall under matters either specifically addressed in section 92 of the Constitution Act of 1982, or are in respect of other provincial heads of power, including matters of a local or private nature in a province.
Federal laws, including amendments to the Criminal Code and other statutes, as proposed in Bill C-14, must respect this division of powers and not unduly interfere in provincial jurisdiction. To do so would be unconstitutional. It is for this reason that we as parliamentarians must be honest with Canadians about the limits of our jurisdiction and acknowledge that it would not be appropriate, for example, to attempt to directly regulate what hospitals or provincial professional regulators can or cannot do with respect to conscience rights. To do so would be misleading to health care providers and to Canadians.
With that said, this does not mean that we cannot address conscience rights in Bill C-14. It just means that we have to do it in a manner that respects the Constitution.
As introduced, the preamble of Bill C-14 included language about respecting the convictions of health care providers. However, it was obvious that many people did not find that reference in the preamble to be adequate and were seeking more precision.
Of course, our government wants all Canadians to have comfort, as much as they can, with Bill C-14. Therefore, I am pleased to report, as has been reported today, that members of the Standing Committee on Justice and Human Rights worked diligently and collaboratively to amend Bill C-14 to indicate Parliament's intent with respect to conscience rights, while also ensuring compliance with the division of powers.
The committee amended the preamble to specifically recognize that everyone has freedom of conscience and religion under section 2 of the charter and that nothing in the act would affect the guarantee of freedom of conscience and religion. The committee also amended the body of the bill so that in the most critical section of the Criminal Code, that law would state, “For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.” I certainly welcome these amendments.
There are a few important features of the amendment to the body of the bill that I believe are worth highlighting.
First, it is prefaced with the expression “for greater certainty”, which is legally important because, as I mentioned earlier, it helps remind the reader that the source of conscience rights is in the charter, not the provision that would be inserted in the Criminal Code.
Second, the new provision explains that nothing compels an individual. That language clearly communicates that while it is true that Bill C-14 would remove the criminal prohibition against medical assistance in dying in certain defined circumstances, such a change to the Criminal Code would not impose any positive duty that did not exist in the law before. It is not this change to the Criminal Code that would make medical assistance in dying a form of health care. It would only open the door to it. It is also consistent with the framework for medical assistance in dying put forward in Bill C-14, which is, as I have mentioned, a new set of criminal law exemptions from various offences that would now permit conduct that used to be illegal, in order to give effect to the Supreme Court's ruling in Carter. We must remember that what the Carter ruling did was to find those criminal prohibitions to be unconstitutional.
Third, the language in the new provision specifically indicates that nothing would compel an individual to provide or participate in providing medical assistance in dying. As all members are aware, charter rights belong to all Canadians, not just physicians, nurse practitioners, or pharmacists. By using the word “individual”, the provision is clear that the bill would not impose any new positive duty on anyone, including but not limited to those health care professionals who provide or participate in providing medical assistance in dying. At the same time, this new provision added by the committee would not interfere with the division of powers, nor would it encroach on the jurisdiction of provincially regulated entities.
In terms of working together, since the Carter decision, one thing that we have consistently heard from many individuals and organizations who have spoken about conscience rights is the need for there to be real, practical solutions to the problem of palliative care. The Minister of Health has emphasized, and I agree with her, that non-legislative measures can act in tandem with Bill C-14 to ensure the charter rights of everyone involved, and that they can be respected.
This is why the government has announced its commitment to work closely with the provinces and territories to put in place a system that will connect willing providers to patients who qualify for medical assistance in dying. This is in line with the long-standing Canadian tradition of co-operative federalism, which is about each level of government working together while also respecting their respective jurisdictions. I am confident that this system will meet the access needs of Canadians and play an important role in ensuring that health care professionals can continue to care for their patients in a manner that is consistent with their beliefs and their values.
The motion from the member opposite is well intentioned. It speaks to rights and values that are important to many Canadians, particularly as they pertain to medical assistance in dying. However, I cannot support it. As amended, Bill C-14 would appropriately respond to all the important considerations that surround medical assistance in dying, including enabling autonomy for persons who choose a peaceful death, protecting vulnerable persons, affirming the value of the lives of all Canadians, and respecting the charter rights of health care professionals. The bill would respect these rights in a manner that is consistent with our constitutional framework. Unfortunately, the motion from the member opposite would fail to meet a similar balance, and I will not be supporting it.