David Lametti

[Criminal Code, February 13th, 2023]

Mr. Speaker, I thank the hon. member for his work on the special committee, and we look forward to the recommendations of the special committee. One of the reasons to have a delay is precisely to take what that special committee might recommend better into account.

Mental illness is an illness, and I strongly support initiatives to better resource the encadrement, the support we are giving to people suffering from mental illness. It is something that our government has recognized.

We put $5 billion into the system a number of years ago. However, when we did that for mental illness, we found that we could not guarantee that the provinces would actually spent that money on mental illness. In the current set of negotiations between the Minister of Health and his counterparts, as well as the Prime Minister and his counterparts, we are trying to build some accountability into that system, but we definitely do agree with the need to invest in greater mental health resources, particularly in this case. We want people to be able to live a dignified life with the supports they need to accomplish that.

[Criminal Code, February 13th, 2023]

Mr. Speaker, I thank my colleague for his question and comment.

The criteria for receiving medical assistance in dying in situations where the person is not at the end of life are very strict and rigorous, particularly when it comes to the subject we are considering today and in cases where mental illness is the only factor.

A person cannot automatically get medical assistance in dying just by requesting it. It is much more serious than that. Our practitioners, the medical community and those who provide medical assistance in dying take their responsibilities very seriously.

With regard to the comment made by the leader of the official opposition, I completely agree with my colleague. That shows a rather jaded attitude toward a subject that is very complex and morally difficult for many people. We therefore have to be respectful about it, even in our discussions.

[Criminal Code, February 13th, 2023]

Mr. Speaker, I thank the hon. member for his work on this file.

What is different now, two years later, is that we have done a great deal of work. The expert committee, led by Dr. Mona Gupta, thinks we are ready to move forward with the protocol it has developed, as do a number of professionals and professional bodies across Canada, but there is not unanimity. That is why we are proposing a one-year extension so we, along with medical professionals and Canadians, can internalize what the next step will be.

Let me point out that we all have a duty as parliamentarians to not participate in exaggeration or misinformation. What this bill would not do would be to allow a person suffering from depression or anxiety to immediately get MAID. This is for a small fraction of individuals who are suffering intolerably from long-standing mental disorders under long-standing care of medical professionals and who want another option. That is what this is about. It is not about people who are contemplating suicide.

[Criminal Code, February 13th, 2023]

moved that Bill C-39, An Act to amend An Act to amend the Criminal Code (medical assistance in dying), be read the second time and referred to a committee.

Mr. Speaker, I rise today to speak to Bill C-39, an act to amend an act to amend the Criminal Code regarding medical assistance in dying. This bill would extend the exclusion of eligibility for receiving medical assistance in dying, or MAID, in circumstances where the sole underlying medical condition for MAID is a mental illness. The main objective of this bill is to ensure the safe assessment and provision of MAID in all circumstances where a mental illness forms the basis for a request for MAID.

An extension of the exclusion of MAID eligibility in these circumstances would help ensure health care system readiness by, among other things, allowing more time for the dissemination and uptake of key resources by the medical and nursing communities, including MAID assessors and providers. It would also give the federal government more time to meaningfully consider the report of the Special Joint Committee on Medical Assistance in Dying, or AMAD, which is expected this week.

My remarks today will focus on the legislative history of MAID in this country. I want to be clear that medical assistance in dying is a right, as affirmed by the Supreme Court.

In its 2015 Carter v. Canada decision, the Supreme Court of Canada ruled that the sections of the Criminal Code prohibiting physicians from assisting in the consensual death of another person were unconstitutional. In response, in 2016, our government tabled former Bill C-14, an act to amend the Criminal Code and to make related amendments to other acts regarding medical assistance in dying.

The basic purpose of the bill was to give Canadians nearing the end of life who are experiencing intolerable and unbearable suffering the option to obtain medical assistance in dying. The bill was passed two months later, when medical assistance in dying, or MAID, became legal in Canada for people whose natural death was reasonably foreseeable. It included procedural safeguards in order to ensure that the person’s request for medical assistance in dying was free and informed, and to protect the most vulnerable.

In 2019, in Truchon v. the Attorney General of Canada, the Quebec Superior Court ruled that it was unconstitutional to restrict the availability of MAID to individuals whose natural death was reasonably foreseeable. One year later, in response, we introduced a second bill on medical assistance in dying, the former Bill C-7, an act to amend the Criminal Code regarding medical assistance in dying.

Former Bill C-7 expanded eligibility to receive MAID to persons whose natural death was not reasonably foreseeable. It did so by creating a separate, more stringent set of procedural safeguards that must be satisfied before MAID can be provided. The government proposed, and Parliament supported, these stringent procedural safeguards in recognition of the increased complexities of making MAID available to people who are not otherwise in an end-of-life scenario.

Some of these additional safeguards include a minimum 90-day period for assessing eligibility, during which careful consideration is given to the nature of the person's suffering and whether there is treatment or alternative means available to relieve that suffering. This safeguard effectively prohibits a practitioner from determining that a person is eligible to receive MAID in fewer than 90 days.

Another additional safeguard is the requirement that one of the practitioners assessing eligibility for MAID has expertise in the underlying condition causing the person's suffering or that they must consult with a practitioner who does. The assessing practitioners must also ensure that the person be informed of the alternative means available to address their suffering, such as counselling services, mental health and disability support services, community services and palliative care. It is not enough just to discuss treatment alternatives. They must ensure the person has been offered consultations with relevant professionals who provide those services or care. In addition, both practitioners must agree that the person gave serious consideration to treatment options and alternatives.

The former Bill C-7 extended eligibility to medical assistance in dying to people whose death is not reasonably foreseeable. However, it temporarily excluded mental illness on its own as a ground for eligibility to MAID. In other words, the bill excluded from eligibility for medical assistance in dying cases where a person's sole underlying medical condition is a mental illness. That temporary exclusion from eligibility stems from the recognition that, in those cases, requests for medical assistance in dying were complex and required further review.

In the meantime, the Expert Panel on MAID and Mental Illness conducted an independent review of the protocols, guidance and safeguards recommended in cases where a mental illness is the ground for a request for medical assistance in dying. The expert panel’s final report was tabled in Parliament on May 13, 2022.

The Special Joint Committee on Medical Assistance in Dying also completed its parliamentary review of the provisions of the Criminal Code relating to medical assistance in dying and their application, as well as other related issues, including mental health. We eagerly look forward to the special joint committee’s final report, expected on Friday, February 17.

I would also like to highlight the excellent work of the expert panel, ably led by Dr. Mona Gupta.

This temporary period of ineligibility was set in law to last two years. It will expire on March 17 unless this legal requirement is amended by law. This bill would do just that, and proposes to extend this period of ineligibility for one year, until March 17, 2024.

As I stated at the outset of my remarks, this extension is needed to ensure the safe assessment and provision of MAID in circumstances where a mental illness forms the sole basis of a request for MAID. It is clear that the assessment and provision of MAID in circumstances where a mental illness is the sole ground for requesting MAID raises particular complexities, including difficulties with assessing whether the mental illness is in fact irremediable and the potential impact of suicidal ideation on such requests.

That is why, when some Canadians, experts and members of the medical community called on the federal government to extend the temporary period of ineligibility to make sure the system was ready, we listened. We listened, we examined the situation carefully and we determined that more time was needed to get this right.

As for the state of readiness of the health care system, I would like to take a moment to highlight the great progress that has been made toward the safe delivery of MAID in those circumstances. For example, standards of practice are being developed for the assessment of complex requests for medical assistance in dying, including requests where mental illness is the sole underlying medical condition. Those standards of practice will be adapted or adopted by clinical regulatory bodies and by clinicians in the provinces and territories. These standards are being developed and will be completed in March 2023.

In addition, since October 2021, the Canadian Association of MAiD Assessors and Providers, or CAMAP, has been developing an accredited study program for health professionals. Once completed, that program will include seven training modules on various topics related to the assessment and delivery of medical assistance in dying, including on how to assess requests for medical assistance in dying, assess capacity and vulnerability, and manage complex and chronic situations. That program should be finalized and ready to be implemented next fall.

This progress was achieved through our government's leadership and collaboration with the health system's partners, such as the provincial and territorial governments, professional health organizations, our government's regulatory agencies, clinicians and organizations such as CAMAP.

The Regulations for the Monitoring of Medical Assistance in Dying, which set out the requirements for the presentation of reports on MAID, came into force in November 2018.

These regulations were recently revised to significantly improve the collection of data and reporting on MAID. More specifically, the regulations now provide for the collection of data on race, indigenous identity and any disability of the person. The revised regulations came into force in January 2023, and the information about activities related to medical assistance in dying in 2023 will be published in 2024 in Health Canada's annual MAID report.

I think we can all agree that substantial progress has been made. However, in my opinion, a little more time is needed to ensure the safe assessment and provision of MAID in all cases where a mental illness is the sole basis for a request for MAID.

I want to be clear that mental illness can cause the same level of suffering that physical illness can cause. We are aware that there are persons who are suffering intolerably as a result of their mental illnesses who were waiting to become eligible to receive MAID in March 2023. We recognize that these persons will be disappointed by an extension of ineligibility, and we sympathize with them. I want to emphasize that I believe this extension is necessary to ensure the safe provision of MAID in all cases where a mental illness forms the basis of the request for MAID. We need this extension to ensure that any changes we make are done in a prudent and measured way.

I want to turn now to the more technical part of Bill C-39 and briefly explain how the bill proposes to extend the mental illness exclusion. As I stated earlier in my remarks, former Bill C-7 expanded MAID eligibility to persons whose natural death was not reasonably foreseeable. It also included a provision that temporarily excluded eligibility in circumstances where a mental illness formed the basis of the request for MAID. Bill C-39 would delay the repeal of the mental illness exclusion. This would mean that the period of ineligibility for receiving MAID, in circumstances where the only medical condition identified in support of the request for MAID is a mental illness, would remain in place for an extra year, until March 17, 2024.

I want to reiterate that we need more time before eligibility is expanded in this matter. We need more time to ensure the readiness of the health care system, and more time to consider meaningfully and to potentially act on AMAD's recommendations. This is why I urge members to swiftly support the passage of this bill. It is imperative that it be enacted before March 17. If it is not, MAID will become lawful automatically in these circumstances. It is essential that this bill receive royal assent so that this does not happen before we are confident that MAID can be provided safely in these circumstances. I trust that all colleagues in this place will want to make that happen.

The safety of Canadians must come first. That is why we are taking the additional time necessary to get this right. Protecting the safety and security of vulnerable people and supporting individual autonomy and freedom of choice are central to Canada's MAID regime. We all know that MAID is a very complex personal issue, so it is not surprising that there is a lot of debate. It should go without saying that seeking MAID is a decision that one does not make lightly. I know from speaking with members of the medical community that they take both their critical role in the process and their professional duties toward patients extremely seriously. I trust that medical professionals have their patients' interests at heart, and this sometimes involves supporting their patients' wishes for a planned, dignified ending that is free of suffering.

Once again, I strongly believe that an extension of the exclusion of MAID eligibility in this circumstance is necessary to ensure the health care system's readiness and to give the government more time to meaningfully consider and to potentially implement the AMAD recommendations. I remind the House that those recommendations are expected just one month before the current mental illness exclusion is set to expire. Therefore, I implore all members to support this bill.

[Business of Supply, February 9th, 2023]

Madam Speaker, if one uses the notwithstanding clause at the beginning, one acts as if there is no charter. That was not the intention of the framers in 1981. It was there as a safety valve, as the last word, when Allan Blakeney and other western premiers advocated in its favour. It has a terrible impact.

The judge in the first instance decision in the Bill 21 case, the Hak case, in Quebec noted that the pre-emptive use of the charter cut off both judicial scrutiny and political debate. That is a tragedy for our democracy because it puts minorities at risk.

[Business of Supply, February 9th, 2023]

Madam Speaker, like my hon. colleague, I am proud to be a Quebecker and a Canadian. To understand the structure of the charter and the rights protected, we must first look at the sections that balance part I, and then at section 33 on the notwithstanding clause. They have to be considered in a way that is consistent.

If the notwithstanding clause is used at the outset, it removes all rights and precludes the balancing process set out in section 1. The notwithstanding clause is the last word, not the first word. In our system, as my hon. colleague knows, we have a dialogue between the courts and the legislatures, so a province can use the notwithstanding clause, but following a court decision or, I would say, a court of appeal decision.

[Business of Supply, February 9th, 2023]

Madam Speaker, René Lévesque did not want a notwithstanding clause in his Quebec charter. He was in favour of individual rights in principle, but as Premier of Quebec—and to provoke then prime minister Trudeau—he put the notwithstanding clause in several Quebec bills over the course of at least a year. It was primarily a political strategy. He was against the notwithstanding clause. He did not want one in his own charter.

[Business of Supply, February 9th, 2023]

Madam Speaker, the hon. member has a point about—

[Business of Supply, February 9th, 2023]

Madam Speaker, I will be sharing my time with the hon. member for St. Catharines.

I am pleased to speak today to the motion moved by the member for Beloeil—Chambly. I would first like to say that I am a Quebecker and that I am one of the Quebeckers who oppose Bill 21 and the use of the notwithstanding clause to violate the rights of minorities. I take inspiration from René Lévesque, who took the same position and did not want a notwithstanding clause in his charter. He was against the use of a notwithstanding clause to violate minority rights, and I completely agree with him.

I would also like to point out that in the speeches given by Bloc Québécois members, there is a basic assumption that there is only one way to be a Quebecker and only one Quebec voice. That is not the case. I am a proud Quebecker and I do not share the opinions expressed by my Bloc Québécois colleagues that there is only one way to view the Quebec nation.

According to my colleague's motion, it is solely up to the provinces to decide on the use of the notwithstanding clause when it pertains to current issues. This is a matter of very great importance, not just for our government, but also for our society, our democracy and our country.

I want to make it clear from the outset that I am not questioning the fact that provinces have and should have the right to use the notwithstanding clause. What I am suggesting is that the notwithstanding clause was designed to be used only in exceptional circumstances, and only after the courts have had an opportunity to fully and rigorously consider a bill to determine whether it infringes on rights and freedoms.

The debate over the notwithstanding clause concerns all of us as Canadians. It is not specifically targeting Quebec or its government, nor does it target any other province in particular. It is a debate about the values of our free and democratic society. This involves fundamental freedoms, our democratic debates and the courts as guardians of our constitution.

Our government has always been very clear about its concerns over the pre-emptive use of the notwithstanding clause by the provinces. We have repeatedly stated that we are considering all of our options. We are firmly committed to defending the rights and freedoms protected by the charter. Many of us have strong positions on the use and role of the notwithstanding clause in our democracy. Our differences of opinion should not cause us to lose sight of the principles that underlie the debate.

Ultimately, that is why we disagree with the Bloc Québécois today. It is incumbent on all Canadians to participate in this discussion, including the federal government and members of the House. These are issues that deserve a national conversation. That is why our government has already said that we will intervene to challenge Bill 21 if and when it reaches the Supreme Court of Canada. Canadians expect the federal government to participate in any national dialogue about the use of the notwithstanding clause before our country's highest court.

The notwithstanding clause stems from political compromise. During constitutional negotiations, including the notwithstanding clause was, in part, what brought the Canadian Charter of Rights and Freedoms into being. It was a concession that paved the way for the adoption of this fundamental constitutional document, which has proven essential to maintaining our free and democratic society.

The inclusion of the notwithstanding clause in the charter was not intended to provide Parliament or a provincial legislature with a mechanism to routinely override certain provisions of the charter. Rather, the broad consensus at the time was that the notwithstanding clause was an extraordinary remedy. Moreover, the notwithstanding clause was to be used by Parliament or a provincial legislature only in the most exceptional cases, where there was no other option. It was never intended to become a primary remedy to allow a government to abdicate its duty to protect fundamental rights and freedoms.

Indeed, we must be aware that the pre-emptive use of the notwithstanding clause by a legislature is an admission that the legislation violates the fundamental rights and freedoms that the charter provides for all Canadians.

In fact, section 1 of the charter allows the courts and legislators to consider the balance between individual rights and the interests of society in the framework of each new legislative initiative.

This broad historic consensus on the highly exceptional nature of the notwithstanding clause has resulted in its relatively rare use in the years that followed the patriation of the Constitution.

Before 2018, only three provincial legislatures had used the notwithstanding clause. In fact, Parliament has never used the notwithstanding clause.

That is why it is deeply concerning to see the increased use of the notwithstanding clause in recent years by different provincial legislatures. More troubling still is the growing trend of invoking the clause pre-emptively.

Pre-emptive use of the notwithstanding clause prevents the courts from having an opportunity to review legislation to determine whether it is consistent with the charter. It skips to the end of the process without the opportunity for debate and due consideration. One could say it eviscerates the process and the balances that are built in to the charter itself.

Let us remember what is at stake here. Section 33 allows Parliament or the legislature of a province to override the protections of section 2 and sections 7 to 15 of the charter.

Let us review but a few. Section 2 is our fundamental freedoms, which include freedom of expression, conscience, belief, religion and association. Section 7 is the right to life, liberty and security of the person. Section 15 is the right to equal treatment before and under the law, and equal protection and benefit of the law without discrimination.

These rights are critical to our society. In fact, I would say they are the pillars of our country's human rights framework.

I previously said that section 33 was meant to be the last word for the exercise of parliamentary sovereignty. When a legislature chooses to invoke section 33, this prevents the court from invalidating legislation that unjustifiably limits charter-listed protections. Canadians are thus prevented from obtaining remedies from legislation that violates their fundamental rights. That is why it was designed to be used only in the most extraordinary and exceptional circumstances, as a last resort and not as a first move.

I taught civil law for years in Quebec, and the Quebec Civil Code is interpreted consistently. The same is true of the Canadian Charter of Rights and Freedoms, which protects our rights, from section 1, which strikes a balance, all the way through to its last section, section 33.

Our Constitution comprises a system of laws and fundamental principles that define the nature, functions and limits of the Canadian system of government, both at the federal and provincial levels. Our Constitution also establishes the three branches of government, namely the legislative, the executive and the judicial branches. As we know, each of them has a role to play in maintaining a fair balance and enabling Canadians to live in a healthy democracy.

Finally, it is also important to consider constitutional conventions, the rules that bind political actors and dictate how and when they should use the legislative or judicial powers, which are protected under the Constitution. The primary role of constitutional conventions is to ensure that these powers are exercised in accordance with the fundamental values that underpin the text of the provisions. In simpler terms, these powers must respect not only the provisions of the charter, but also the spirit of the charter.

This discussion must include the pre-emptive use of the notwithstanding clause. When a government decides to apply the notwithstanding clause to a bill before the courts have even had a chance to decide on its constitutionality, that in effect paralyzes the dialogue between the legislative and judicial powers. This dialogue, however, fosters a culture of human rights that is meant to be transparent, open and pragmatic and that allows all members of the public to share their views and participate in our democracy.

Before I wrap up and answer any questions, I would like to say this: I am a Quebecker, and it is clear that Quebec does not speak with just one voice and that Quebeckers express themselves in many ways.

[Business of Supply, February 9th, 2023]

Madam Speaker, I thank my colleague for her speech.

I would point out that René Lévesque was against the notwithstanding clause. He did not want it in his charter. He and Camille Laurin were great supporters of human rights. With the changes brought to the Quebec charter through Bills 21 and 96, we can no longer say that it is René Lévesque's and Camille Laurin's charter.

I would like my colleague to comment on the following. The trial judge on the Bill 21 case stated that the pre-emptive use of the notwithstanding clause suppressed not only the court's analysis, but also political debate. That is the opposite of what Robert Bourassa did legitimately when he used the notwithstanding clause after a Supreme Court decision was rendered.