Bill C-7 fails to achieve the Senate’s purpose: to protect the rights of those whose minority positions are threatened by majority rule
February 17, 2021 (Ottawa, ON) - The Honourable Don Plett, Leader of the Opposition in the Senate, issued the following statement:
Honourable senators, I find myself standing in this place today with a real sense of déjà vu. Almost five years ago, on June 15, 2016, this chamber had just finished considering amendments to Bill C-14 and was about to vote on third reading. Including the pre-study, we had completed a month-long consideration of the government’s assisted suicide bill and had spent the previous week debating amendments. We were all emotionally exhausted. Every one of us who was here at the time remembers those days well. The subject matter was difficult, but we had no choice but to address it the best we could. In the end, Bill C-14 passed the Senate by a vote of 64 to 12 with one abstention.
Our amendments were sent over to the other place, and while a few of them were accepted, most ended up being rejected. I suspect the result of this week’s vote and the outcome of this bill in the other place will be very similar. But even though many things are the same this time around, I have been struck by how much has changed in such a short time.
Bill C-14 had not come to us on the initiative of the government, but because of a decision by the Supreme Court of Canada. It wasn’t a question of whether we were going to have assisted suicide. It was a question of what it would look like and what the safeguards would be.
This is not the case with the bill before us today. Bill C-7 is the result of the federal government choosing to cave in to the opinion of one judge in one province, who decided unilaterally to strike down legislation that had been extensively debated and passed by both houses of Parliament.
The federal government could have defended their legislation. I would argue that they had the responsibility to do so. They simply chose not to. If they had done the right thing and appealed the Truchon decision to the Supreme Court, it would have shown respect for Parliament, and the result would have given us all much-needed clarity on the court’s expectations with the original Carter decision. No, colleagues, we are not here today because of a court decision. We are here today because this government’s ambivalence toward its own legislation and its ineptitude in failing to defend it.
That is not the only thing that is different this time around. Five years ago, we realized that the step we were taking was a momentous one. It was a societal shift, and everyone on both sides of the issue had great respect for those on the other side. We were undoubtedly a partisan chamber back then. We would argue vigorously about government spending, crime legislation and foreign policies. But we knew when to put partisanship aside. This was decidedly one of those issues.
Our views on this matter are shaped by many of our own life experiences and, hopefully, by bringing an open mind to the committee table when we hear from witnesses. Politics plays no part in matters of conscience, especially in what is supposed to be a chamber of sober second thought.
That is why I found it alarming when a senator questioned an amendment that I passionately defended by asking me: What would Stephen Harper say? As if this would somehow make me question this proposal that I had worked on for weeks with physicians, ethicists, medical lawyers, constitutional lawyers and our Senate law clerk’s office.
Since the question was posed, let me tell the senator what Stephen Harper would have said. He would have encouraged me and his entire caucus, the way he always did, to vote our conscience on issues of morality. This is, in fact, a pillar of the Conservative Party of Canada.
I did not bring forward the amendment protecting conscience rights on behalf of the Conservative Party of Canada, or indeed as the leader of the Senate Conservative caucus. I should make it clear that nothing I have said on this topic, including this speech today, is on behalf of my caucus or my party. It should have been evident by the end of last week that there was no uniformity in any caucus on this issue, and that politics was, rightly, not top of mind as we deliberated. I did not bring forward the conscience amendment lightly or without thorough consideration. I brought this amendment forward out of respect for the thousands of physicians and nurses who will leave the profession without this protection, and out of respect for the Indigenous leaders, the faith groups and the professional associations who pleaded with the Senate.
After our study and the subsequent reports showed that the existing protection is inadequate, attempts to strengthen it were shot down. When this amendment, like many proposed last week, was brought forward, there was no attempt to improve it. There were no alternatives given. There was no recognition that this is a real-life problem faced by hundreds and possibly thousands of health professionals. Instead, the concerns of those whose medical careers are at stake were summarily dismissed, even when it has been clearly proven that such protection would result in no barrier to access.
Those who cavalierly dismiss this issue as “it’s working well” or “it’s a balanced approach” are either unaware of the battle in Ontario which led the Ontario Medical Association to ask Parliament to intervene, or they simply were not listening.
Those who raised alarm at how this amendment — and for some reason only this amendment — infringes upon provincial jurisdiction should note that many constitutional lawyers feel that this entire bill risks trampling all over provincial jurisdiction as we seek to regulate health care from the Criminal Code.
In fact, I do not believe that we have ever had a bill go through Legal and Constitutional Affairs Committee where someone did not question its constitutionality, whether that was the Canadian Bar Association, the Canadian Civil Liberties Association or the Canadian Council of Criminal Defence Lawyers. We listened, and ultimately, we charged forward based on the merits of the proposed policy.
We understood that our role was ultimately to do the right thing; enact sound policy and let the courts do their part. Let’s not ring the unconstitutional alarm bells only when someone brings forward an amendment that we do not like.
We get to move on after these proposals are rejected. Our jobs remain safe. We get to continue to do what we love. However, for many in this country, this marks the end of a meaningful, compassionate medical career.
As I said, amendments were handled differently this time around. The structure was the same. We lumped together the themes and moved through the topics together, but the attitude was very different. During this chamber’s consideration of Bill C-14, we saw many amendments put forward, but we did not have the enthusiastic, almost gleeful attacks on those amendments like we have seen this time. There was recognition that the amendments that had been put forward were done so out of deeply held personal convictions, and there was respect for those whose beliefs were different from your own.
I intentionally chose not to engage on amendments I disagreed with, because I knew that each of these amendments was carefully considered and not brought forward lightly. While I may have strongly disagreed with what was being proposed, I was not about to challenge another senator’s personal convictions. Of course, there are ways to engage in meaningful, respectful debate on these amendments, and we did see some of that. However, it saddened me, for the many Canadians who were tuned into the Senate for this short time and especially for the witnesses, to see their concerns dismissed in such a disrespectful way.
I was recently reminded of a story of how Senator Joyal, one of those who advocated vigorously for Bill C-14, approached another senator, one of my colleagues, who had just spoken from the heart in this chamber about her deep reservations regarding medical assistance in dying.
He told her how much he had appreciated what she had to say, and how important it was that her viewpoint be heard in this debate. They were on opposite sides of this issue, yet there was mutual respect and even support for one another.
I remember vividly when Senator Joyal — a legal mind for whom we all have tremendous respect — approached me after my speech on C-14. This speech was purely on moral concerns I had with this legislation, and it was spoken from the heart. He told me afterwards how much he had appreciated my words and how important they were as we deliberated this important issue. Again, we were on opposite sides of this bill, but he appreciated my words as much as I appreciated his scholarly insight.
That respect extended to my participation on the Legal and Constitutional Affairs Committee. When I first joined that committee, I did so reluctantly. I felt completely out of place. I was clearly the furthest thing from a legal scholar. But senator Serge Joyal and senator George Baker were my biggest champions on that committee. They would often tell me how at times we needed some common sense to cut through the noise, and encouraged me to remain a member of the committee when I had doubts. We were more often than not on opposite sides of an issue and fought fervently to defend our positions, but the respect we had for one another was paramount.
Senators, I long for those days. In 2016, we did not hear the contemptuous voices when senators’ viewpoints or values differed from the witnesses at committee. I was shocked to see how some witnesses were blatantly disrespected and even ridiculed for their positions. When witnesses are invited by our committee to testify, because we have decided that their expertise or perspective would be of value, we can question their arguments, but we do not question their integrity or their motivations.
A lawyer who testified on behalf of a faith-based advocacy group was accused by a senator of using the plights of the disability community as leverage to advance an ideological cause against MAID, without having regard for these concerns outside of the issue of MAID. That suggestion was clearly shot down when the witness ran through the multitude of work that he and his organization do for the disability community. However, this highly credible and respectful witness should not have to respond to such an insinuating accusation.
And then, to have a physician who has been called as an expert in multiple U.S. Supreme Court cases be accused of peddling a conspiracy theory or endure name-calling like “Professor Google” because he raised concerns that some disagree with. This is beneath us in this chamber. Dr. Zivot simply raised a question and encouraged the Government of Canada to engage in post-mortem analysis so that we can know for certain that the drugs we are using in the MAID procedure have the impact that we expect them to.
Colleagues, much has changed in five years. In 2016, there was great concern about safeguards. Now, five years later, safeguards are being called a “barrier to access,” perpetuated by those ideologically opposed to assisted dying. How quickly we forget that the trial judge in Carter called for “. . . stringent and well-enforced safeguards.” The Supreme Court justices said “. . . a carefully designed and monitored system of safeguards” was needed. Yet in our deliberations, every voice that noted that the current safeguards are insufficient was brushed aside.
Take, for example, Senator Batters’ amendment to ensure that the 10-day reflection period was preserved. It’s ironic, colleagues; in the province of Nova Scotia, after a couple has been granted a marriage certificate, they have to wait for five days before they can get married. In Quebec, that waiting period is 20 days. After all, colleagues, this is a serious decision to get married, and we do not take it without careful consideration. And yet when someone wants to make a decision to end their life, we have decided no reflection period is needed.
In 2016, there was a significant emphasis on ensuring that palliative care would not only be protected, but improved and made accessible to all. Yet during the testimony at committee this time, we found that not only has this not happened, but the resources that used to be directed to palliative care are now being redirected to medical assistance in dying. In some cases, palliative care hospices are being closed unless they also offer MAID to their clients. This makes palliative care less accessible, not more. Yet, this time around, the pleas for changes and more rigorous protection fell on deaf ears.
Colleagues, these things trouble me greatly. We are not gently sliding down a slippery slope, as international experts have warned; we are in a free fall.
You may recall that during the debate over the first MAID bill, the government faced the same accusations that are being levelled against it in this debate. Critics contended that the bill would be found unconstitutional because it did not permit MAID for psychiatric illnesses and because it required that death be reasonably foreseeable. If you recall, the Court of Appeal of Alberta considered both of these issues on May 17, 2016, and confirmed what the critics were saying. On the issue of whether MAID should be made available to those who are not terminally ill, the appeal court said:
. . . the declaration of invalidity in Carter 2015 does not require that the applicant be terminally ill to qualify for the authorization.
On the issue of psychiatric illness, the court said, “Persons with a psychiatric illness are not explicitly or inferentially excluded if they fit the criteria.”
This was the period before Bill C-14 was passed by Parliament. Critics seized on the court’s decision to hammer justice minister Jody Wilson-Raybould with the accusation that Bill C-14 was too restrictive and medical assistance in dying needed to be more broadly available. The justice minister’s response was very instructive. Here’s what she said:
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.
Minister Wilson-Raybould informed the members of the other place that Bill C-14 introduced new legislative objectives that would change the Charter analysis. The minister was confident that by clarifying the objective of the legislation, the court would have to incorporate this new information into any future examination of the law, forcing them towards a different conclusion than what was reached in Carter.
I will leave it to the lawyers and legal experts in this chamber to debate whether the former justice minister’s claims were well-founded. However, in my mind, it is telling that the government refused to allow it to be tested at the Supreme Court. Rather than appealing the Truchon decision, they simply embraced it.
It is no secret that the views of the current Justice Minister, David Lametti, differ greatly from the former justice minister. In 2016, Mr. Lametti stood in the House of Commons and voted against his government’s Bill C-14 at third reading, because he felt it did not go far enough.
When the Truchon decision came down, Minister Lametti had no intentions of challenging it because it was exactly what he wanted. He is on the record that he believes Bill C-7 strikes the right balance and hopes that MAID will eventually be expanded to include people suffering with mental illness.
Ms. Wilson-Raybould, on the other hand, has publicly challenged Minister Lametti’s rewrite of Bill C-14, noting that not only did he fail to appeal the Truchon decision but that he and the Trudeau government are going much further than the Truchon decision required by scrapping the 10-day reflection period for patients close to death.
Last year, on November 23, Ms. Wilson-Raybould stood up in Question Period in the other place and said the following:
Mr. Speaker, why is Bill C-7, medical assistance in dying, abolishing the safeguard of a 10-day reflection period and reconfirmation of consent, thereby introducing advance requests for MAID?
Nothing in the Truchon decision of the Quebec Court of Appeal, which the government chose not to appeal, requires this, and the Supreme Court of Canada, in Carter, insisted on the requirement of clear consent. Palliative care physicians, disability advocates and other experts insist that this is an important safeguard, and, like other legislated MAID reports on mature minors and mental disorder, advance requests also raise significant challenges.
Colleagues, the government has proceeded with Bill C-7 under the pretense that the Truchon decision has forced it to do so. This is patently false. Former Justice Minister Wilson-Raybould anticipated Charter challenges and took measures to ensure that the act would withstand them. But, again, rather than defending their own legislation, this government chose to abandon it in what can only be interpreted as an unnecessary but intentional shift in government policy on medical assistance in dying.
Honourable senators, this chamber is supposed to provide sober second thought, but I fear we have not done so. We were sent a bill that represents a major shift from our original regime. Namely, the bill has singled out one Charter protected group, the disability community, and offered them a way out, without moving with any urgency to offer them a way into this society. This community, the most directly and profoundly impacted group, has resoundingly come out in opposition to this legislation. The message this bill sends to them, colleagues, is truly horrifying.
Gabrielle Peters, a woman living with a disability, and a passionate advocate, explained precisely how discriminatory this legislation is. The first track of this legislation is available to all Canadians equally. Any Canadian who is approaching end of life with a grievous and irremediable medical condition is eligible for physician-induced death. The second track has now singled out one Charter-protected group, the disability community, and told them that they can also end their lives. How is this not discriminatory?
I want to personally thank Gabrielle Peters and every other disability advocate who has been engaged on this issue for their continued engagement even when it has been difficult beyond measure. Ms. Peters has continued to keep parliamentarians in check of their ableist assumptions as we make decisions that will affect their lives so deeply.
Senators, when we read accounts into records of people living with a disability, with graphic details of their symptoms and conclude that this is not a life, this is not living, please be mindful of how that feels to the thousands of Canadians who live with those very symptoms and who know that their life is worth living.
Gabrielle Peters tweeted the following last night:
I can’t do this.
There is a senator standing in the Canadian Senate reading out symptoms I live with every day and saying: This is not living. This is not a life.
I am sobbing. Thank you Canada for telling me I am not alive. I guess that makes killing me easy.
Colleagues, let’s be cognizant of our words and their impact as we conclude this debate.
The disability community is overwhelmingly concerned about the impact on their community. We know that the services available to Canadians living with a disability are shamefully inadequate. We know that many attribute their suffering to the lack of available services rather than the disability itself, and this will be unquestionably the result of the death of valuable members of our society — death which is preventable. We know that the United Nations has raised grave concerns, and yet we are voting to send a bill back to the House of Commons that includes expansion proposals but has not taken into consideration a single concern raised by the group most profoundly impacted — a group that includes 6.2 million Canadians.
Colleagues, we have failed our disability community. Yet we swiftly passed a proposal that did not receive study or scrutiny at either our extensive pre-study or regular committee study. I am not weighing in on the merits of this proposal, as I know the motivations were good. But we did not have any rationale to move forward with this amendment. This, too, should have been left to be studied in greater detail at our five-year review that we have not yet had.
We also failed to address Indigenous concerns. I have spoken about this at length, and we are all aware of the lack of consultation that preceded this legislation. However, I would like to read part of one letter from Dr. Thomas Fung of Siksika Health Services, Siksika Nation. He thanked many of us for speaking and voting in favour of conscience protection for Indigenous practitioners, and elaborated on the importance. He concluded with the following:
Even though the amendment did not pass, please be consoled that my friend with schizophrenia thanks you. He said that if MAiD was available at his worst, he would not be here today. He is glad to be alive, having accomplished a PhD in Math. He shares his love of reciting poetry in public to the delight of many.
Another patient of mine had indicated to his family that he wanted MAiD 1.5 years ago when he entered long term care. He didn’t qualify because he was not near death. He was a difficult and irritable man who had abused alcohol and was estranged from most of his family. His arthritic pain was not well managed. But since being cared for at our facility: his pain was controlled with medications; his anger was tempered by the care of attentive staff; and I will go as far as saying that he became a pleasant man. Had Bill C-7 been in effect, his life would have been cut short, and he would have been deprived of the opportunity to make peace with himself. He died comfortably of natural causes this week.
These are some of the reasons why I reject Bill C-7. I will also continue to work with Indigenous advocates to hold the Government of Canada accountable for not having allowed their voices and concerns to have any meaningful influence in policy development & health delivery. Much work is needed ahead.
I was saddened that when we received a letter from multiple Indigenous leaders and groups who were not consulted from the outset and asking us to bring forward two simple amendments that would make this legislation less harmful to their communities, they were overwhelmingly dismissed.
I also believe it’s important to highlight the words of psychiatrist Dr. John Maher who wrote to all of us this past weekend following the passage of the sunset clause amendment. He said:
Honourable senators, I saw 20 patients on Friday. In supporting the amendment for a sunset clause for MAID for mental illness, you have already led some of my patients who were gradually healing to say they will now stop treatment because MAID is coming.
He continues, “You don’t know them, but I know them. I have known them for years.”
These are his words, not mine.
When Senator Kutcher publicly describes doctors like me as discriminating against our patients and being paternalistic, it breaks my heart. I am trying to save their lives and help them find hope and meaning. As they heal, their suffering isn’t primarily from disease. It is from a society that, along with all of the other stigmatization and rejection, is now wanting to help them die. I can’t tell you how sad I am.
Dr. Maher provides a series of myths and facts on MAID for mental illness, which I would encourage you all to read. He dispels a series of myths, including but not limited to: Bill C-7 is not discriminatory; MAID is consistent with each doctor’s professional obligation to practise according to established standards of care; psychiatrists can predict which people will not recover from their mental illness; MAID doesn’t make patients want suicide; MAID is not suicide; a doctor helping a patient complete suicide is not a moral issue in a secular and pluralistic society; MAID for mental illness enhances personal autonomy; there is good mental health care for all the sickest people in Canada. The list goes on.
Allow me to read one that particularly resonated with me because it speaks to our deliberations in this chamber.
The myth is that the Senate supported an 18-month sunset clause because they wisely weighed all the evidence they heard. In response, Dr. Maher states this:
Fact: The preponderance of Senate Committee evidence did not support moving forward with MAID for mental illness (hence the Committee’s very thoughtful report.) Either there is adequate data to support determinations of irremediability or there is not. If it existed, it would have been presented. It does not exist, so it could not be presented. Therefore, in ignoring the Committee report, the majority of the members of the full Senate gave unjustified weight to supposition, fallacious reasoning, and/or political agenda. Furthermore, they are trying to pre-empt the mandated (and COVID delayed) legislative review of Bill C-14; they did not weigh the clear recommendation of the Canadian Council of Academies that advised against proceeding with MAID for mental illness due to lack of data and the limits of clinical prognoses; they did not respect the informed pleas of myriad organizations representing the most vulnerable of citizens, or of the United Nations; and they are trying to bind parliament to a course of action of their own desire with no request for a reference to the Supreme Court.
Honourable senators, when psychiatrists are pushing for MAID for patients whom other psychiatrists believe they can treat, such referral will be a reflection on the limits of that psychiatrist, not the true irremediability of the illness. The result of those limitations is death. This is nothing short of tragic.
Dr. Maher raises a very good point about the disparity between our Senate committee report and the legislative actions we have taken since. I have also found the leaps we have taken perplexing.
Our actions do not reflect what we have heard or any consensus in psychiatry. As psychiatrist Dr. Sonu Gaind said, “a sunset clause would be putting the cart before the horse without even knowing if the horse exists.”
Colleagues, I know that the rationale for most in this chamber, if not all, for expanding this regime to those with mental illness is born out of compassion or adherence to the Constitution. However, given the vast disagreements on the predictability and the irremediability of mental illness and how high the stakes are when we are dealing with life and death, I urge you to reconsider this message we are sending to the House of Commons.
I am proud of the tireless work of the committee on this bill and its comprehensive reports, and I commend them for that. However, I regret to say I am not proud of the bill we are sending back to the House of Commons. We are categorically not proceeding with caution as we move to make Canada the most permissive regime in the world.
I want to remind colleagues of the sobering observation made by the court in Rodriguez v. versus British Columbia that said:
To the extent that there is a consensus, it is that human life must be respected and we must be careful not to undermine the institutions that protect it. This consensus finds legal expression in our legal system which prohibits capital punishment.
This consensus finds legal expression in our legal system which prohibits capital punishment. This prohibition is supported, in part, on the basis that allowing the state to kill will cheapen the value of human life and thus the state will serve in a sense as a role model for individuals in society. The prohibition against assisted suicide serves a similar purpose. In upholding the respect for life, it may discourage those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide. To permit a physician to lawfully participate in taking life would send a signal that there are circumstances in which the state approves of suicide.
Colleagues, the Carter decision overturned Rodriguez, but it did not invalidate this astute observation that by removing the prohibition against assisted suicide you simultaneously diminish respect for life and erode the very thing that discourages:
. . . those who consider that life is unbearable at a particular moment, or who perceive themselves to be a burden upon others, from committing suicide.
We are creating a situation where there is no longer any viable argument to persuade someone who is intent on dying by suicide at any stage in their life not to do so. By expanding access to selected groups who are not approaching end of life and for whom there may be treatment options available, and by preemptively reducing the safeguards before we have any data to justify it, I fear we are normalizing suicide, and we are even complicit in its promotion as a medical treatment option.
There is a long-standing history of our laws being normative — sometimes positively, and, at times like this, very negatively. When we normalize something, we get more of it. Look no further than Belgium and the Netherlands for ample evidence of this.
This chamber could not have pushed back against the government’s decision not to appeal Truchon. However, I did believe it was incumbent upon us to listen to the experts and proceed with great caution. I do not believe it was our responsibility to push for radical expansion. Those would have been better addressed by a five-year parliamentary review, which we are still awaiting.
In fact, while I hope I am wrong, I find it very troubling that all three government representatives and the sponsor of this bill jointly abstained on the most radical expansion of the amendment proposed. And yet on any proposal to enhance or restore safeguards, they were vehemently opposed. Points of orders were called. Constitutionality was questioned and implications were made that the restoring of the same safeguards that the government artfully defended a few years ago would now be cruel. It will be very telling to see which amendments this government accepts.
But regardless of which amendments passed or failed, I would never have supported this legislation in the end, which indisputably discriminates against 6.2 million Canadians living with a disability. I find our approach in addressing the concerns of this already stigmatized community completely backwards, and I do not believe there is anything redeeming in this legislation.
However, my concerns with this bill that we are sending back far outweigh my concerns with the bill that we received. I will conclude with some wise words from our esteemed colleague Senator Murray Sinclair, to whom many of us paid tribute yesterday. In his first speech to this chamber, he reminded us of our role here, which is to “. . . protect the rights of those whose minority positions are threatened by majority rule. . . .” Senator Sinclair contended that:
We must abide by the proverb that when two foxes and a chicken are voting on what to have for dinner we will stand up for the chicken.
Wise words, colleagues.
Honourable senators, this is our final opportunity to provide sober second thought to this life-and-death legislation. I would encourage all of us to keep that in mind as we vote on whether this bill should proceed. I contend wholeheartedly that it should not. Thank you, colleagues.