Murray Rankin

[Criminal Code, April 22nd, 2016]

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”.

[Criminal Code, April 22nd, 2016]

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

[Criminal Code, April 22nd, 2016]

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?

[Petitions, April 22nd, 2016]

Mr. Speaker, I rise to present a petition from the people of Victoria, calling on the government to allocate 0.7% of Canada's GDP to official development assistance by the year 2020.

I was pleased to meet last week with my friends at Results Canada, who are powerful advocates for this initiative. It was former prime minister Pearson who set that target way back in 1970, and we have yet to meet it. Indeed, we are falling far short of it today.

We can and must do more to achieve the UN sustainable development goals, and these petitioners ask us to begin that work today.

[The Environment, April 22nd, 2016]

Madam Speaker, yesterday a new report from the parliamentary budget officer highlighted the lack of a national strategy for dealing with greenhouse gas emissions and how our current approach is going to cost us all dearly.

Liberals continue to operate under the old Conservative plans and targets. They are great at environmental rhetoric, but time and again they fall down on getting anything done. The parliamentary secretary just refused to answer this question, so let us try again. Exactly how much will greenhouse gas emissions be reduced in each of the next three years?

[Criminal Code, April 22nd, 2016]

Madam Speaker, I would like to congratulate my colleague, the member for St. Albert—Edmonton, for his very useful contribution in the same spirit with which he contributed so much during the work of the Special Joint Committee on Physician-Assisted Dying, which I had the honour of being part of. I would like to echo his thanks to the member for Don Valley West and also Senator Ogilvie, who co-chaired that important committee. I just hope that during this debate we can sustain that same tone of respectful dialogue.

He indicated that he was satisfied that Bill C-14 is consistent with the Carter case. On that point, as I will elaborate I hope later today, I respectfully disagree but hope we can work together in the justice committee to get it right for all Canadians.

I was taken with his comments on conscience protection in the legislation, something which just came up as well in the comment from my colleague across the way.

In pointing out it is a charter right for those who have conscience reasons not to participate in medical aid in dying, I think he made an excellent reference to section 3.1 of the Civil Marriage Act which gives a recognition for that conscience protection in that legislation.

I am wondering whether or not it should be appropriate to leave this to the provinces. Some have said this is a matter, and I think the minister made that point as well, of provincial jurisdiction working with the colleges. On the other hand, the member points out that it involves the charter, and therefore, those individuals who wish to support those rights are going to have to work with 13 other jurisdictions.

I would like the member's comments on whether he thinks that is appropriate.

[Criminal Code, April 22nd, 2016]

Madam Speaker, I would like to begin by congratulating the minister on a very thoughtful presentation. I am grateful for that.

The minister, in her remarks, did refer to the need for a delicate balance and believes that she has that balance right in the bill before us. She then talked about the need for parliamentarians to listen to Canadians, but also, of course, to listen—fundamentally, I thought she said—to the court.

The question I have is with respect to the rule of law. Had we listened to other Canadians in the context of other delicate issues, such as abortion or same-sex marriage rights or the like, that might have undercut what the court said in those judgments. My question for the minister is this. If she is persuaded by evidence she hears that we do not have that delicate balance right: (a), would she agree to amendments, and, (b), would she agree to perhaps refer this to the Supreme Court of Canada in an official reference to ensure we have the delicate balance, to which she referred, right?

[Criminal Code, April 21st, 2016]

Mr. Speaker, I wish to say at the outset that I am proud that the New Democratic Party members will be fully supporting this important initiative at second reading. I want to thank my colleague from London North Centre for bringing this issue to the attention of the House. I want to also salute him for taking the time to meet with members on all sides of this House to try to explain his reasoning in bringing forth this important bill.

The bill responds to the fact that torture, as it appears in our Criminal Code in section 269.1, applies only to the conduct of state actors like police and military personnel. The member intends through this initiative, I assume, to create a parallel within domestic torture, events that he has described with such clarity and that deserve society's opprobrium, without any doubt at all.

I want to also salute my colleague from St. Albert—Edmonton who moments ago pointed out that there would be overlapping sections of the Criminal Code, but like me, he wishes to let this bill go to the justice committee where it can be studied and improved because, as the member so modestly pointed out, it does deserve to be amended in a few key areas.

Sometimes it is important to use words in a Criminal Code to show society's disdain for certain conduct. We could charge people with aggravated assault—and we do currently—for things that the member has described, but they amount to torture, and everybody knows it is torture. Yes, it is true that the words are slightly different in the international covenant, and they are a little different in the Criminal Code from what my colleague has put in his bill. However, those are technical points that can be readily addressed through review at the committee.

Members may recall that several years ago a politician was charged with gangsterism. The authorities did not need to charge that individual with gangsterism. They could have charged him with fraud and breach of public trust or a whole bunch of other sections of the code. However, that word will never be forgotten. Similarly, many of the things we call terrorism are nothing more than criminal offences, but by calling them terrorism, we attach to them the weight that society needs to have attached to them, because they are of a different calibre than simple crimes like assault, kidnapping, or the like. We call them terrorism for a purpose and we call it gangsterism for a purpose, even though they amount to other crimes under other sections of the Criminal Code.

That is why I think the bill is so important. Let us call a spade a spade. It is not aggravated assault when we hear the heinous acts that were described by my colleague. It is torture. If we want to say that, because of some technical reason and our international commitments somehow not squaring perfectly with this domestic bill my colleague has brought forth and we do not even want to use the “t” word in the bill, who cares? The public will call a spade a spade, and call it torture. To not let this bill pass because of technical concerns that can be readily addressed at the justice committee would be very unfortunate.

I have consulted with criminal lawyers about this bill and I have looked at case law, and the fact situations are just chilling, as members know. We are talking about victims of the most prolonged and sadistic physical and mental abuse. For those who survive, the physical and mental consequences can be permanent: PTSD, etc.

In some cases, the possibility of bringing other charges such as kidnapping, forcible confinement, or assault with a weapon can ensure that the offender faces a lengthy sentence, even a life sentence. In other cases, however, the sentences have not seemed to many to meet the gravity of the crime. This bill would ensure that the gravity of the crime is matched by the appropriate sentence.

In all cases, survivors and their families may question why the acts of torture they endured are not acknowledged as such by the law. That is what I said earlier when I said that we as a society should call a spade a spade and attach terms that match what the public says about the crimes. It is up to us to make the Criminal Code be our servant, not our master.

There are many dimensions to this issue beyond the name change or the severity of a sentence. Canada is party to the United Nations convention against torture. As such, we are obliged to take effective measures against non-state torture within our borders.

It is certainly worth debating whether the existing offences in our Criminal Code, which do not mention torture by name, are the most effective and appropriate means to prosecute these crimes. However, this international dimension also gives rise to some technical concerns that have been raised about the bill.

Again, specifically, it is vital that any amendment we make to the Criminal Code under the rubric of torture not create discord, either in definition or sentence, with our international commitments under the convention and with our domestic prohibition against state torture.

I know the member for London North Centre is familiar with these concerns. I thank him again for taking the time to educate us all on the initiatives that he has taken and the work he has done.

Of course, as we consider what more Canada can do to eradicate torture, I would like to take this opportunity to call upon the government, once again, to ratify the optional protocol to the UN Convention Against Torture.

Despite promises in 2006 and 2009, and repeated calls from Canada and international NGOs, the government has yet to take this crucial concrete step to affirm our commitment to upholding human rights at home and around the world. There is simply no excuse. We cannot condemn torture and ignore effective measures to prevent it. As ever, the world is going to judge Canada by our actions, not just our words.

Of course, the bill speaks to the reality that acts of horrific and repeated abuse and violence do not just happen in foreign jails far from Canadian shores. They take place within our borders, in our communities.

As organizations like the BC Child and Youth Advocacy Coalition and the Canadian Federation of University Women have rightly pointed out, these abuses disproportionately target women and girls. I am thankful to those organizations and others for their advocacy on this issue.

As we sit here and debate the bill and its connection to gender-based violence, we must recognize that far more action is needed to not just reduce but end violence against women and girls in Canada.

My colleague, the member for Churchill—Keewatinook Aski proposed a motion in this House to develop a national action plan to end violence against women. She presented a wonderful town hall in my community of Victoria, where we addressed these issues about violence against women and girls. That action plan I commend to this House to this day as still being vitally necessary.

The motion would have led to better policies to prevent violence and support survivors, and more action to address socio-economic factors that contribute to violence, among many other things.

Despite the defeat of that initiative at the hands of the last Conservative government, I assure members we are going to keep pushing in this House for that action plan to end violence against women. We hope the new government understands the necessity to take that action and makes the investments in shelters, affordable housing, and emergency resources, so no woman is denied the help she needs to escape an abusive and sometimes torture situation that she faces.

There are many steps we can take to uphold our international commitment to eliminate torture, to prevent the most horrific acts of violence within our communities, and to support the survivors.

In my view, the bill is an important step along that path. It definitely merits further consideration in this House. With the help of the member for London North Centre, I am sure we can do a better job to ensure that the bill meets our international obligations, does not contradict sections of the Criminal Code, is appropriately harmonized with the sentences, and that we can get it right. Technical amendments should not stand in the way of justice.

[Criminal Code, April 21st, 2016]

Mr. Speaker, I congratulate the member for London North Centre on the passionate and vital initiative before us today.

I am very pleased to hear him reiterate his willingness to have amendments considered at the justice committee. I would agree with him that no piece of legislation is perfect, and there often can be changes made at the justice committee. I sit on that committee, and I would be very happy to assist in any way I can to ensure the bill is palatable.

The member mentioned one amendment in response to my colleague's question concerning harmonization of sentences. If there are problems in harmonizing this initiative on domestic torture with state torture, would he be prepared to perhaps remove the word “torture” should there be any ambiguity in simply reiterating the definition of “torture”, but maybe not use that word, should that give any cause for concern to the government of the day?

[Canada Revenue Agency, April 21st, 2016]

Mr. Speaker, is the Liberal government serious about tax havens?

The Minister of Finance and his parliamentary secretary are busy explaining why companies they have left have links to Caribbean tax havens. The Minister of National Revenue continues to defend sweetheart deals with millionaire tax cheats and privileged relations with KPMG.

As Canadians are sitting down these days and doing their taxes, they are angry about one set of rules for the super rich and another for the rest of us.

When will the minister just call an investigation into the KPMG tax evasion scandal?