Mr. Speaker, I am honoured today to speak to Bill C-14 at third reading.
Four months ago, I walked into the first meeting of a special House and Senate committee, created to advise the government on its response to the Supreme Court of Canada's decision in the Carter case. We worked long hours and late nights, respectfully and constructively with all parties and involving both chambers. We heard from witnesses and experts from across Canada and from all walks of life.
As we worked, I know that many of us thought of those who had struggled and suffered for the right to control their own lives at the end: people like Sue Rodriguez, who died in 1994 after losing her battle with ALS and losing her battle in the Supreme Court of Canada a year before. I recognized important contributors like Svend Robinson, member of Parliament, in that earlier battle. I think of people like Kay and Lee Carter, Hollis Johnson, William Shoichet, and Gloria Taylor, who fought valiantly and won in the court last year.
The work of the Special Joint Committee on Physician-Assisted Dying proved that a thoughtful and respectful debate was possible, but more than that it proved that a well-crafted bill could win the support of all parties and members of both Houses. I say that because a broad majority of us from all parties and both chambers agreed on 21 recommendations to the current government. I never imagined that I would be standing here now to oppose this bill.
This government bill ignores or rejects the majority of recommendations of that joint House and Senate committee. I am proud of those recommendations. It is true that many would have required great political courage, but all of them faithfully followed the evidence we received from the majority of experts who appeared before us. For example, I sought to have advance requests accepted by people who may lose the ability to provide competent consent at the end. The vast majority of Canadians told us that they want that. However, not only does this bill reject those recommendations, the bill would defy the Supreme Court ruling, fall short of its requirements, and therefore would violate the Charter of Rights and Freedoms for suffering Canadians.
That is the opinion of the Canadian Bar Association, the Barreau du Québec, and many others. That was the ruling of the Alberta Court of Appeal a couple of weeks ago, and just days ago, a court in Ontario echoed the Alberta decision. Justice Paul Perell of the Ontario Superior Court of Justice ruled that the Supreme Court's basis for an assisted death “is the threat the medical condition poses to a person's life and its interference with the quality of that person's life”. He went on to say, “There is no requirement...that a medical condition be terminal or life threatening.”
Despite this, time and again the current government has limited debate and tried to strong-arm a flawed bill through this chamber.
To be sure, this is a complex and sensitive issue, but not a partisan one. The Supreme Court has given us as parliamentarians an opportunity, not an ultimatum, to craft legislation that is consistent with the Carter decision. As is so often the case in this debate, we ought to look at exactly what the court said. Here is what they said, in paragraph 126 of the decision: “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.”
Today the Minister of Justice again suggested that the court instructed us to enact a bill by a particular date. The court said the opposite. Each of us as parliamentarians, facing a free vote, has a simple question to answer: Does this bill obey the constitutional parameters set out by the Supreme Court in Carter? In my submission, that is the only question. If it does not, if it fails that test, then this House is being asked to knowingly infringe the charter rights of suffering Canadians and to enshrine that violation in law.
The Supreme Court of Canada established that all adult competent Canadians suffering intolerably from a grievous and irremediable medical condition have the right to choose assistance in dying. The government would have us honour that right only for patients nearing the end of life.
The Canadian Bar Association has said that such a restriction does not meet the floor of rights established by the court. The Barreau du Québec has said the same, and so has the Canadian Council of Criminal Defence Lawyers, the BC Civil Liberties Association, and many other respected legal organizations.
I suggested removing this line to help the bill comply with the court and the charter, but that idea was rejected by the Liberal majority. Now the Alberta Court of Appeal has ruled unanimously that the government's interpretation of Carter is simply wrong. In a crucial decision that the court wrote a couple of weeks ago, it said:
Carter 2015 does not require that the applicant be terminally ill.... The decision itself is clear. [...] The interpretation urged on us by [the Department of Justice] is not sustainable having regard to the fundamental premise of the Carter case itself....
This is a devastating indictment of the very argument that the government has relied upon to defend Bill C-14 against this rising chorus of critics. Surely that ruling should give us all pause. However, still some will argue that the Supreme Court cannot be obeyed right away, that medical reality dictates a balanced approach.
The government's restrictions have raised eyebrows in the medical community as well. The federation representing every medical regulatory authority in Canada has called this bill's end-to-life requirement “too vague to be understood or applied by the medical profession and too ambiguous to be regulated effectively”.
The College of Physicians and Surgeons of Ontario called it inconsistent with Carter and likely to cause confusion among physicians. The Canadian Nurses Association suggested going back to the words of the Supreme Court, as I have done in this place. If that were done, this controversial line could simply be deleted. I proposed doing exactly that, and my amendments were rejected by the Liberal majority on the Standing Committee on Justice and Human Rights.
Not only are medical groups concerned about the bill, many were not even consulted. According to testimony in the Senate, neither the Federation of Medical Regulatory Authorities of Canada nor any of the provincial or territorial colleges were consulted in the drafting of the bill.
We have a bill in which a few key lines have drawn heavy fire from both the legal and medical communities. These lines could be written on a napkin. They could easily be deleted, as my amendments would have done, and replaced with the exact words of our Supreme Court. Who could resist and oppose that in good faith? However, the government has refused precisely to do that.
On the first day of committee hearings, a Liberal member asked the Minister of Justice a simple question: “Have we sought outside counsel to ensure charter compliance of this bill?” The minister chose not to answer, citing only her personal confidence in the bill. Clearly, no independent confirmation of its charter compliance has been found.
I appreciate what the minister told this House recently, that no one has a monopoly on interpreting the charter. Of course, the minister is right, but I am afraid that the outlier here is not the critics; it is the government. The Canadian and Quebec bar associations, eminent legal and medical experts, the lead counsel in Carter, all are saying that the bill does not obey the Supreme Court of Canada's ruling.
Against that array, the government stands almost alone, brandishing a backgrounder from the Department of Justice and refusing to refer the question to the Supreme Court, or even to obtain an independent legal opinion.
Now the Alberta Court of Appeal has unanimously rejected the government's argument that the Supreme Court limited its ruling to end-of-life patients. Let me repeat: A provincial court of appeal has already ruled that the government's narrow and selective reading of Carter, the legal argument that supports this bill, is not consistent with the Supreme Court's ruling and therefore infringes a patient's charter rights.
Now we are being asked to enshrine that violation in law, and with what justification? No argument has been made for the bill's compliance with Carter and the charter. The minister is right that Bill C-14's many critics cannot simply assert that the bill is not constitutional, but neither can the government simply assert that it is. No one can claim to know the inner thoughts of our Supreme Court justices, but neither can the government continue to suggest that the intention of their ruling is somehow opaque or unknowable. The ruling was not an ink blot test, it was quite clear. The court was looking at the law with the same objective as the bill, to protect specific vulnerable individuals suffering during moments of weakness. The court found that the previous ban was overbroad because it caught people outside of that class, competent people who were not vulnerable and therefore deserved to have their autonomy respected.
That would remain true under Bill C-14. An entire class of competent adult Canadians would be condemned to intolerable suffering and denied recourse to assistance in dying. They may be forced to end their lives prematurely or violently. These are the same violations of section 7 rights identified already by the court in Carter. Although the court in Carter did not choose to proceed to an analysis of a section 15 infringement, the equality rights provision, the trial judge did. She concluded that the prohibition “imposed a disproportionate burden on persons with physical disabilities, as only they are restricted to self-imposed starvation and dehydration in order to take their own lives”.
As Quebec's minister of health warned us when he spoke out against the bill, this is precisely the same cruel option that will soon face patients if Bill C-14's end-of-life clause is not deleted. It is shameful that the bill leaves suffering Canadians in that cruel position.
At committee, I pressed the Department of Justice on this point. I told them the story of Tony Nicklinson. This story comes from an affidavit filed in the Carter case. During a business trip to Athens, Mr. Nicklinson suffered a severe stroke that caused what is called locked-in syndrome. In this state, he could not move a single muscle of his body except his eyelids. His healthy active mind was trapped in an unresponsive body, without remedy, without hope, and perhaps for decades more. He said he could not even drink and smoke in the hopes of shortening his life. Mr. Nicklinson wrote this in an affidavit, one blink at a time. He told the court this:
The flaw in the argument is the assumption that we all want to live whatever the cost in terms of quality of life when this is clearly not the case. I want to make that choice for myself. What prevents me is the fact that I am too disabled to take my won life and unlike an able bodied persons I need help to die.
By all means protect the vulnerable (by vulnerable I mean those who cannot make decisions for themselves,) just don't include me. I am not vulnerable. I don't need help or protection from death or from those who would help me - if the legal consequences were not so huge....
I am asking for my right to choose when and how to die to be respected. I know that many people feel that they will have failed if someone like me takes his own life and that life is sacred at all costs. I do not agree with that view. Surely the right and decent thing to do would be to empower people so that they can make the choice for themselves.
Mr. Nicklinson did not live in a place which empowered him to make that choice. He did not have the option of medical assistance to die peacefully, and so he starved himself to death. If he were alive today, Bill C-14 would offer him no hope, no respect for his autonomy.
This is the point I made to the Department of Justice. I was told that I was wrong. I was told that Mr. Nicklinson would not have to starve himself to death in Canada. He would just have to starve until a doctor declared his life “reasonably foreseeable”. Those are the words used in Bill C-14.
This is what we are talking about when we say that the bill infringes on the Charter of Rights and Freedoms for Canadians. Quebec's minister of health warned the government that the bill would force competent, consenting patients to endure starvation to win from the current government the rights that were already granted to them in the Carter case.
The court found the previous ban unconstitutional, not only because it violated the rights of competent patients but also because it was unnecessary. A better system was possible. Vulnerability, it said, could be assessed on an individual basis, and well-designed safeguards are capable of protecting the vulnerable. With these facts, the court could see no justification for continuing to deny the autonomy of whole classes of competent patients, like Mr. Nicklinson.
There is still no justification. In fact, the last refuge for the government would be to accept what is now clear, that Bill C-14 does not meet the test of the Supreme Court, and to argue that somehow it is necessary to violate the charter or even wise, because the safeguards the Liberals have developed are too weak to handle more complex cases. The bill is flawed, and I cannot accept that argument.
I was proud to serve on the joint House-Senate committee that offered recommendations to the government before the drafting of Bill C-14. We studied best practices around the world and recommended many of the robust safeguards found in the bill. Above all, I have great confidence in the care and professionalism of Canadian medical practitioners, and so I cannot accept that the Supreme Court was wrong in saying that well-designed safeguards can protect vulnerable people. I cannot accept that this regime is so weak—or Canadian doctors so careless—that it cannot be trusted to faithfully uphold the full charter rights of patients and to filter out those who are not able to make this choice.
Therefore, I am left with a simple conclusion. Enacting the bill would revoke from an entire class of competent and suffering adult Canadians the rights established for them by the Supreme Court. It would do so in a manner that is neither medically necessary nor legally justified.
I have sought to amend the bill and have seen those solutions rejected. I have requested independent constitutional analysis, and found none. I have called on the government to refer it to the Supreme Court of Canada, and it has not. Now I cannot, as a lawyer and a parliamentarian, support the enactment of a law that I believe would be unconstitutional from the outset. To vote for Bill C-14, against the charter rights of suffering patients—and I know some of them by name—I cannot do.
The government may try to excuse the bill's imperfections as inevitable in the circumstances, and I know there are members here who recognize that the bill is flawed but have been told they simply have to pass it by June 6.
Let us be clear about what happens on June 6. The absolute ban on medically assisted dying will not be restored, nor will the offences that prevented it, such as aiding suicide, disappear from the code. In other words, crime will not become legal, nor will medical assistance in dying become illegal. Rather, an exemption will open for patients and physicians acting within the parameters of the Carter decision. Of course, every provincial regulator has made rules to deal with safeguards over the last year anyway. They are ready to go. A federal law is not necessary to provide basic access and safeguards.
I call on my colleagues across the aisle, with whom I have worked constructively and collaboratively, to give real meaning to this free vote, to prove by their example what Canadians know to be true, that the final word on our constitutional rights comes not from the PMO but from the Supreme Court of Canada.
I move:
That the motion be amended by deleting all the words after the word “That” and substituting the following:
“Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), be not now read a third time but be referred back to the Standing Committee on Justice and Human Rights for the purpose of reconsidering Clause 3 with a view to ensuring that the eligibility criteria contained therein are consistent with the constitutional parameters set out by the Supreme Court in its Carter v. Canada decision.”
