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C-14 Medical Assistance in Dying

Honourable senators, it's with a good deal of humility and similar pride in this institution that I rise to participate in this debate. It's been an incredible week for me in this chamber, as it has been for many of you who have spoken about that experience.

In the course of the debate, we've experienced the power of reason and argument; we've experienced also the equal power of emotion and our own personal stories. And, as legislators, it is our task now to integrate the reason and logic, stories and emotion, and ultimately come to an individual and, through the process of legislating, a collective view.

It is in that context that I rise and participate in this debate, a debate which we all know was commenced with the ruling of the Supreme Court in the Carter case, in which the Supreme Court called upon the government, Parliament, to respond in a year to the ruling. And for reasons that Senator Patterson rightly described, because of the unique circumstances of that year and a change in Parliament, Parliament itself has had a less than fulsome period in which to deal with the Supreme Court's demand. I would argue that Parliament, the government, have, within the context of that timing, had a broad process of engaging parliamentarians and other stakeholders, provincial and territorial governments, affected communities, the disabled, certainly legal advice. And Parliament, in terms of the other chamber, dealt in the way in which the House of Commons works, with a series of positions and amendments and ultimately on an all-party basis passed a bill which is now before us, for us now to take our responsibilities.

I cannot see how we end this process for us other than having support for a particular position embraced by non-traditional and cross-bench, if I can use that term, voices in this chamber. The task for us over the next number of days is to find the mechanisms that allow us to achieve that.

I want to let you know that I feel that as part of my obligation as well, and I commit to you to work as best I can within the role that I play to continue to make this an opportunity in which the Senate can be seen to be and is acting in accordance with the highest standards of our mandate.

Some Hon. Senators: Hear, hear.

Senator Harder: While the parliamentary consideration, one could argue, has been rushed, the debate has been long; 23 years ago, in the Rodriguez case, it launched the debate, and there have been a number of references in place to the work of Senate committees, and in particular Senators Nancy Ruth and Larry Campbell, and work done in public policy fora by institutes and professional groups on the whole area of medical assistance in dying and how societies ought to cope with this changing view, not necessarily driven in the courts in the first instance, obviously, but in society itself.

I would argue that the bill before us is a democratic bill in that it has a balanced approach and reflects the diverse views of stakeholders and Canadians across the country. I believe this bill, and at this historic moment, is a bill that is the right approach for our country at this time.

For the first time in Canadian history, our criminal law would permit physicians and nurse practitioners to provide medical assistance in dying so that patients suffering intolerably on a path towards death could have a peaceful passing and not be forced to endure a slow or painful dying process. Bill C-14 would also codify in the criminal law stringent national safeguards which the court in Carter considered essential to protect the most vulnerable.

The bill would also establish the framework for a pan-Canadian monitoring regime so that we may collect the required data to properly assess the implementation of medical assistance in dying.

The bill is the product of careful consideration of the need for personal autonomy, access to health care services, protection of vulnerable persons and also conscience rights of providers.

With Bill C-14, the government seeks to exempt certain health care providers from the Criminal Code offences of assisted suicide and homicide to allow them to provide or assist in providing medical assistance in dying, as stipulated by the Supreme Court of Canada.

This legislation defines the criteria that must be met for individuals to be eligible. There are safeguards that must be followed to ensure that these criteria are met and that the request is truly voluntary. This is critically important to protecting vulnerable populations. As the Minister of Health presented during Committee of the Whole, the legislation establishes the requirement to monitor medical assistance in dying so that we can see how it is working in Canada.

With this bill, we can be confident in it supporting the autonomy of patients who are approaching the end of their lives while protecting the most vulnerable in our society. It is fair to say that while on the one hand many say this bill goes too far, others say it has not gone far enough. Specific questions have been raised in this chamber with respect to the meaning of "reasonable foreseeability of natural death."

It must be remembered that this one criterion needs to be considered in conjunction with all the others, including the requirement that the person have a serious and incurable illness, disease or disability; and that the person be in an "advanced state of irreversible decline in capacity"; and that she or he be suffering intolerably in a manner that cannot be relieved under conditions that they consider acceptable.

"Reasonable foreseeability of natural death" means that, given all the factors contributing to a person's medical condition, it has become fairly clear that she or he is on an irreversible trajectory to death, even if there's no clear or specific diagnosis as to the course of their illness or how much time they have left. This criterion sends a clear message about the intended purpose of the legislation: to give competent adults who are on an irreversible path towards death the option of medical assistance in dying if they so choose.

For some, death may be foreseeable as a result of a single fatal medical condition, but death may also become foreseeable due to a combination of circumstances and conditions, none of which alone is fatal or could cause death.

The Minister of Health articulated to honourable senators that medical professionals have the professional knowledge, training and experience to assess the overall circumstances that lead to a trajectory towards the patient's natural death. The criteria, in their totality, were crafted in order to provide guidance to help medical providers in their assessment of eligibility, while allowing them flexibility in terms of clinical judgment.

However, making this kind of assessment is not an exact science. So the bill puts in place other safeguards, such as requiring that providers must exercise reasonable knowledge, care and skill, and act in accordance with provincial laws, rules or standards, and that the patient must be assessed by two physicians or nurse practitioners.

With respect to conscience rights, the government has committed to work with the provinces and territories to develop an end-of-life care coordination system that would effectively and practically balance the conscience rights of medical practitioners with the interests of Canadians seeking access. I would also note that the Justice and Human Rights Committee amended Bill C-14 to include a clearer statement in the preamble around conscience, as well as a clause in the Criminal Code that would affirm the importance of religious and conscience rights as guaranteed by the Charter, and would further clarify in the body of the bill itself that nothing in Bill C-14 compels an individual against their deeply held beliefs.

Canada's framework on medical assistance in dying needs to take into account a number of factors, including our constitutional framework, of course, but also the fact that Canadians live in such a vast country, including in remote and rural areas, as they construct the implementation of a constitutionally valid approach.

From coast to coast to coast, nurse practitioners provide a full range of high-quality health services, especially in remote and rural parts of Canada, given the lack of physicians in these regions. According to the Canadian Nurses Association, there has been a long tradition of serving the primary health care needs of 9 million people living in remote and rural communities with advanced practice nurses. This number, 9 million, represents a quarter of the Canadian population. This is one of the reasons why Bill C-14 provides exemptions for both physicians and nurse practitioners to be able to provide medical assistance in dying. Nurse practitioners or nurses with equivalent designation are those who are authorized in many provinces to perform medical functions necessary for medical assistance in dying. Similar to their physician colleagues, nurse practitioners have a broad scope of practice and the autonomy and independence to determine the appropriate assessment, diagnosis and required treatments to meet their patients' needs, including a patient requesting medical assistance in dying.

Exempting nurse practitioners from criminal liability, as the bill does, provides provinces and territories with an additional option to facilitate access to medical assistance in dying in unserved areas.

Regarding the issue of advance requests, it is useful to look at the experience and evidence from foreign jurisdictions. In the three European countries where individuals are allowed to make advance requests for medical assistance in dying, only the Netherlands permits such requests in the case of conscious patients who are unable to express their wishes, such as patients with dementia or Alzheimer's. In Belgium and Luxembourg, advance requests can only be carried out where the person is "in a state of irreversible consciousness."

To be clear, this is not what those who would like to see advance requests permitted in Canada are talking about. Evidence from the Netherlands suggests that in the case of individuals suffering from dementia, physicians are generally unwilling to administer medical assistance in dying after the patient has lost the ability to express their wishes. This evidence raises serious questions about the prospect of permitting a practice that Canadian physicians and nurse practitioners may be unwilling to carry out.

The Canadian Medical Association, who represents, as you know, 83,000 physicians across this country, echoed these concerns. They explained that currently in practice, even in the best of situations, physicians have a lot of difficulty acting on advance directives. Add the newness of medical assistance in dying on top of that, and the CMA stressed the potential difficulties in actualizing advance requests under such a complex set of circumstances, especially in the early years when medical providers are getting used to providing assistance in dying. They warned that it would likely prove more difficult for many physicians to participate in this process.

This is why the government has committed to studying this multi-faceted issue. I would like to commend also the members of the Justice and Human Rights Committee in the other place who amended the bill to require that the ministers initiate such an independent study on this issue no later than 180 days after the bill receives Royal Assent.

Finally, I'd like to stress how critical it is for this federal legislative response to be in place as soon as possible. On June 7, there will be no federal statutory framework on medical assistance in dying across this country. Outside of Quebec, there will, therefore, be a lack of safeguards that carry the force of clarity of the Criminal Code and no monitoring system for gathering data, both of which the Supreme Court said were necessary to reduce the risks of abuse or errors.

Uncertainty as to who would be eligible to obtain medical assistance in dying would also continue as legal experts, academics and courts continue to disagree about the meaning of the court's parameters in Carter. This would result in an inconsistent implementation of medical assistance in dying across the country, and this lack of legal clarity about the scope of the criminal exemption created by the Carter ruling could cause otherwise willing medical practitioners to refuse to provide assistance in dying to their patients.

As we heard from the Minister of Health just the other day in this chamber, this could cause very real access concerns for those Canadians who are waiting to obtain medical assistance in dying. In this way, providing legal certainty for medical professionals is inextricably tied to the rights of those Canadians who are suffering.

It has been said by several individuals, both inside and outside this chamber, that because there are provincial guidelines, we ought not to take into account the Supreme Court deadline. While I do agree that the sky will not fall, it is our responsibility to recognize and understand the highly variable standards and protections between our provinces and territories.

For example, Bill C-14 has explicit exemptions for nurse practitioners, other providers and people aiding at the express request of the patient. Medical regulatory guidelines address physicians only.

In New Brunswick, Nova Scotia and Newfoundland, individuals with a mental illness could be eligible for assisted death. Ten provinces and territories do not have residency requirements to be eligible for assisted death. In Ontario and British Columbia, guidelines do not specify age, which suggests the consideration of mature minors is possible. There is no specific waiting period in Quebec, P.E.I., Nova Scotia and Newfoundland and only two jurisdictions, Alberta and Yukon, require two witnesses. Most require only one or none at all.

With the utmost respect for the legal debate that we have before us, we should also be cognizant of the needs of patients and health care providers. It has been made clear by many, including the Canadian Nurses Association, the Canadian Medical Association, the Canadian Medical Protective Association and HealthCareCAN that it is highly unlikely health care providers will provide assisted death without federal legislation, creating access issues, which is of course the very thing the Supreme Court, many Canadians and all honourable colleagues wish to see a reality. At some point, there is a very real concern that, without appropriate safeguards in place, vulnerable populations may very well be at risk.

Medical associations, medical authorities, provinces and territories are requesting federal leadership on this highly complex issue, and that is exactly what Bill C-14 provides. It sets out a strong national framework and strikes the necessary balance between the autonomy of people suffering intolerably who seek to obtain a peaceful passing and the protection of those who may be vulnerable due to age, illness, handicap or other factors, such as loneliness.

Honourable colleagues, I share Senator Sinclair's view that this bill is both constitutional and compliant. It is consistent with the Charter but uses language that is broader in scope and rooted in practical language that patients and providers can understand. The government and the other place recognize that this this is just the start. They are not waiting for the mandated review to begin the process of very specific, independent studies referenced in the legislation.

The bill before us meets, in my view, the test of a democratic bill. It undertook significant consultations, which is not rushed in the space of just a few months but in the broader context of the debate that we've been having in Canada over the last several decades.

Our obligation is that we must honour the commitment made, the bill that has been passed with bipartisan support, and we must begin to implement, as quickly as possible, a legislative regime consistent with the Supreme Court ruling and an immediate process of data collection and independent studies.

Over the past several decades, baby boomers — and that includes some of us still — have defined every public policy issue throughout our age cycle. I fully expect that we will continue to do so, and therefore, this issue and other issues of end of life and senior treatment will continue to be before this Parliament and this chamber as we evolve our thinking and societal considerations, as we learn from the research that is being collected, the data being collected, the basis of future policy choices through the consultations that will be launched. And the experience before us and this house over the period of the next number of months and years will indeed cause this issue to be returning to us for further examination and implementation.