Senator Don Plett, Leader of the Opposition

Criminal Code

Bill to Amend—Third Reading—Debate Continued

On the Order:

Resuming debate on the motion of the Honourable Senator Baker, P.C., seconded by the Honourable Senator Harder, P.C., for the third reading of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), as amended.

Hon. Donald Neil Plett: Honourable senators, I rise to speak to an amendment that I will propose which deals with an issue I have spoken about before in this chamber. The amendment primarily deals with section 241(5), the exemption for a person aiding the patient.

As honourable senators know, the legislation allows an individual requesting assisted suicide to choose between having the death administered by a medical professional in a medical facility or taking the medication as a prescription.

There are a number of concerns when a person takes the medication as prescription. First, there are no safeguards in place. There is no restriction regarding when an individual can take the prescription. It can be immediately or years down the road.

There is no person able to assess consent at the time the person takes the prescription, let alone assessing the competency to consent.

There are no mechanisms in place to ensure the individual is not being coerced or forced into taking the prescription. The list goes on.

Many of us believe that a procedure of this gravity should only be taking place in a medical facility where safeguards are in order, and where they are prepared and equipped to deal with a person's remains.

The following clause in the bill is extremely troubling. Proposed subsection 241(5) reads as follows:

No person commits an offence under paragraph (1)(b) if they do anything, at another person's explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying in accordance with section 241.2.

Colleagues, this subsection allows virtually any person to assist a person in death as long as they say they were asked to do so by the patient.

I cannot state strongly enough, no jurisdiction in the world that has legalized assisted suicide allows for any person, other than the patient or the physician, to administer the substance.

We, in this bill however, have opened it wide up to allow for any person to assist the patient in dying. There are no constraints in place. This is wide open to potential abuse, and, colleagues, we need to put in some reasonable parameters.

In the independent witness clause, namely 241.2(5) it states the independent witness can be:

Any person who is at least 18 years of age and who understands the nature of the request for medical assistance in dying may act as an independent witness, except if they

(a) know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person's death;

The ministers were right to include this exception. In doing so, they have acknowledged that, sadly, there are people out there who would take advantage of family members in a situation like this for financial gain.

The same principle must apply to section 241(5), the most wide open provision of this bill. It is the exemption for the person aiding the patient. While I personally do not believe that anyone should be aiding the patient other than a medical practitioner, I believe that this restriction is a reasonable compromise and the government would be acting irresponsibly not to accept this proposal.

I also propose to add the same language to proposed subsection (4), the "Unable to sign" clause, which again provides no limitation on who is able to sign for a patient who is unable to do so themselves.

The recommendation to amend these two clauses was passed unanimously at the committee with the support of independents, Conservatives and Liberals, including both the sponsor and the critic of the bill.

This is an extremely important exception, and I hope I can count on all honourable colleagues to support this amendment.

Motion in Amendment

Hon. Donald Neil Plett: Therefore, honourable senators, I move:

That Bill C-14, as amended, be not now read a third time, but that it be amended in clause 3,

(a) on page 4, by replacing line 24 with the following:

"ance in dying in accordance with subsection 241.2, except if they know or believe that they are a beneficiary under the will of that other person, or a recipient, in any other way, of a financial or other material benefit resulting from that person's death."; and

(b) on page 7, by replacing lines 33 and 34 with the following:

"who is at least 18 years of age, who understands the nature of the request for medical assistance in dying and who does not know or believe that they are a beneficiary under the will of the person making the request, or a recipient, in any other way, of a financial or other material benefit resulting from that person's death —".

The Hon. the Speaker: It is moved by the Honourable Senator Plett, seconded by the Honourable Senator Frum that Bill C-14 as amended be not now — shall I dispense?

Hon. Senators: Dispense.

The Hon. the Speaker: Senator Plett do you accept a question?

Senator Plett: Yes.

Hon. André Pratte: Senator Plett, I'm wondering, this difference in phrasing, maybe there is something I'm not getting because of my poor mastery of English. In the second part of the amendment, it says, "the nature of the request for medical assistance in dying and who does not know or believe." And the first part of the amendment reads, "except if they know." Why does it say "and who does not know?"

Do you understand the question?

Senator Plett: I'm trying to read the amendment, Senator Pratte.

Senator Pratte: In part (b) of the amendment on page 7 replacing lines 33 and 34, "who understands the nature of request for medical assistance in dying and who does not know or believe."

Senator Plett: I think the terminology is "does not know or believe that they are a beneficiary." I understand it. I guess that is the only way I can answer. They should not believe that they are a beneficiary or in any other way a recipient of any material benefit.

Senator Pratte: Maybe I'm just not getting it.

Senator Dyck: Would the honourable senator take another question?

Senator Plett: Yes.

Hon. Lillian Dyck: I would like to follow up on that question. Could you explain a little more about the intention of the amendment? I know you have had the benefit of attending all the meetings. You indicated to us that there was unanimous support at the joint committee stage. Could you flesh it out so we could have a better understanding of why the beneficiary aspects were put into that amendment?

Senator Plett: Certainly, Senator Dyck.

In the section where a person has to be a witness, it is quite clear and explicit that this person needs to be, as I said in my speech, 18 years of age or older and they cannot be a beneficiary. It has to be somebody completely independent so as not to take advantage of mother or father.

If the person decides that they want assisted suicide but they don't want to do it today — they might want to do it down the road when their illness gets worse and it's unbearable — they ask the doctor or the physician for a prescription. They get the prescription and take it home.

If they take it home, one of a few things may or may not happen. Their mental state could deteriorate to the point where they can no longer make a proper decision. I am suggesting that son or daughter should not be making that decision for them. There should still be independent people involved in making the decision. Possibly the person is just not moving along quite as fast as son or daughter would want them to, and they want to encourage this process to happen a little faster.

Let's be clear that it does not exclude the loved ones from being around their parents if that's what we're talking about. Clearly that person would want his or her family with them, so it does not exclude that. It just means that there must be independent people. Clearly the government realized there is a problem out there, so they put it in. I believe strongly it should be in this clause as well.

I also strongly believe it shouldn't be done somewhere other than in a hospital, but that's not the amendment.

Hon. George Baker: As a matter of clarification, at what point in this process is the honourable senator talking about? Is this after the person has been approved for physician-assisted death and has the drug for self-administration? Is this what he is talking about? Somebody goes home and they have the particular substance with them. That is, it has been authorized that at their particular moment in time at home, this can be self-administered. Is he saying that there must be then somebody completely independent who must be with that person at all times while they're home, just in case the person needs somebody else to assist them to self-administer the particular substance? Is that what he is talking about? Could he give us an example of the reasonableness of that?

An example was given before the committee when I believe Senator Batters asked how long somebody could have the substance at home — I think she said in the refrigerator — before it's administered. I think the answer was two to three years, wasn't it, Senator Batters? Yes, the person could have it for two or three years.

Is the honourable senator suggesting, then, that there must be some independent person at home with the person who has already been given the substance for physician-assisted death and that an independent person would be at home with that person for two or three years until the person wishes to self-administer?

Senator Plett: Well, Senator Baker, of course that's not what I am referring to. I'm referring exactly to what I said in committee when you supported it. Let me explain it to you again to refresh your memory.

This is a person aiding somebody. So, no, I do not believe that the person should have to be there 24 hours a day for three years. First of all, I was told the other day that the prescription would have very little kick to it anymore by that time. Nevertheless, if a person wants to die at their home, or at their cottage, or wherever they want to the die, I don't think, again senator, that this is something where we make a decision on the spur of the moment like we would when going to have a tooth pulled. This is the final decision.

I think if I were to choose this, I would say to my son or daughter, "Okay, the time has come. I'm ready to go," and they would get an independent person to come and aid — that's what this amendment is saying, "to aid that person." If I want to do it by myself who is going to stop me? If I have the needle or the pill — I'm not sure what the prescription would be — I can do it myself. No one is going to throw me in jail after I've done this myself. This is aiding the person and that was what was approved at committee.

Senator Baker: So the decision has already been taken. The approval has already been given. It's up to the person who has been given the approval, namely the person who has requested physician-assisted death, but they want to self-administer at home and at the time that person wishes to be self-administered.

Now a couple of senators likened this to an advance directive or an advance request. This was another way of saying that built into the legislation you're actually approving an advance request.

Are you saying that there must be an independent person? That is, there cannot be somebody in the room with that person at the time, like a member of that person's family?

An Hon. Senator: Oh, oh.

Senator Baker: Oh, that's not what you're saying. You're saying, then, that at the appropriate moment that the person has been authorized to self-administer their drug, they must then get someone who is completely independent to come to the home to assist them with the drug? Is that what you're saying? I'm trying to understand what you're saying.

Senator Plett: No, Senator Baker, I think you do understand.

Senator Baker: No, I don't.

Senator Plett: Let me explain it again to you, as I did at committee and you agreed with me.

When the person asks for assisted death in the hospital a physician is there to administer it. An independent witness has witnessed it but the physician helps administer it. I am saying if, in half a year from now, the person's mind has deteriorated, and so on, I want an independent person there at the last minute —

Senator Baker: At home?

Senator Plett: — whether it's at home, or at the cottage, or wherever — to aid in that process. It cannot just be a beneficiary to do that. There has to be an independent person there aiding in it.

The government saw clearly that was very important at the start. This is another process. I believe that there should also be somebody who is not directly related to the person aiding that person at home.

Senator Baker: At their home?

Senator Plett: Yes, at home.

The Hon. the Speaker pro tempore: Senator Wallace, is it a question or debate?

Hon. John D. Wallace: Yes, a question. Would you accept a question, Senator Plett?

The Hon. the Speaker pro tempore: Senator Plett, do you request another five minutes?

Senator Plett: Yes, I do.

Senator Wallace: Senator Plett, as I understand the proposed amendment, anyone who knew they were a beneficiary, or believed they were a beneficiary, could not aid the person to self-administer the medically assisted death.

If they did know, or believed they were a beneficiary, then they would be committing a criminal offence. That's the consequence. I just don't know how we would determine whether someone believed they were a beneficiary. How would you prove that? In the case of family members who never discussed the will, you may have a thought but you don't know what dad's going to do with the estate. It's never been discussed and you don't actually know. You could be excluded.

How would you determine, after the fact, whether the person acted reasonably in concluding that they didn't believe they would be a beneficiary if it turned out they were? How would you determine that? It seems pretty vague to me.

Senator Plett: I suppose we should ask the ministers that question because that is exactly the wording they are using in the first part where it said "if they believe or know." I am using the same terminology in this part. If they do not know that they are a beneficiary, then they would not be committing a crime. It's if they know or believe that they are a beneficiary. That is the exact wording that is used in the first part. I have not changed that. I'm using the same wording in the second part.

Senator Wallace: Senator Plett, that's fine; I understand that. However, as the mover of this amendment, is there any uncertainty in your mind? Just because it's in another clause of the bill, the bill hasn't been approved — obviously it hasn't been passed. Is there any uncertainty in your mind, as the proponent of this amendment, about what that actually means and how it would be proven if it became an issue after the fact whether someone believed they were a beneficiary and acted reasonably in arriving at that belief? Do you have any uncertainty in your mind what the uncertainty of that means for the purposes of your amendment? Forget what other provisions are contained in the bill. For the purpose of your amendment, are you comfortable with that?

Senator Plett: Well, senator, as I stated in my speech, I am very uncomfortable with the fact that somebody can even do it away from the hospital. So, yes, I'm very uncomfortable with it. My amendment, I suppose — and I really felt strongly that it would probably not receive the support it needed — is to say you can't do it at home. It has to be done in hospital. I am using the same wording they are using. Yes, I'm uncomfortable with the entire idea of administering this drug at home.

Hon. Denise Batters: Would Senator Plett accept another brief question?

Senator Plett: Yes.

Senator Batters: With respect to the matter just raised by Senator Wallace, given that this is a criminal provision, wouldn't it be the case that the standard of proof in showing that knowledge would be guilty beyond a reasonable doubt, that that would be the determination of it; and determination of belief would be what the person's reasonable beliefs may have been, something that the court of law would be determining all the time?

The Hon. the Speaker pro tempore: Senator Plett, you have 30 seconds.

Senator Plett: You are absolutely right, Senator Batters. I believe that in the case of children or relatives, probably most times you would believe that you may well be a beneficiary.