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Bill C-7 (MAID), Third Reading

Honourable senators, I would like to share with you a few reflections on Bill C-7. Allow me first to acknowledge the work of our Standing Senate Committee on Legal and Constitutional Affairs, led by Senator Mobina Jaffer. Our colleagues have worked very hard over the recent weeks to organize hearings, receive witnesses and prepare reports. They were ably supported by Senate clerks, analysts, translators, technicians, cleaners and more, all of whom delivered the hearings under the challenging circumstances of a public health pandemic. I want to also thank colleagues who have spoken ahead of me for the insights they offered, often with striking passion.

I expect there will be no less passion in our third reading debate, and there may also be times during my speech today when I, too, come across as rather “exercised.” My intention today, however, is to try and leave emotions to the side and present instead my most dispassionate analysis of the bill. To be specific, I want to share with you how I am thinking about the bill and the many amendments that will be offered in the days ahead. In that sense, my speech is less about debating the bill than it is about an approach to debating this bill. I thank you in advance for your indulgence.

This bill is ostensibly about the government’s response to the Truchon decision in the Quebec Superior Court, which is, in turn, a new chapter in the evolving legal framework for medical assistance in dying. It is reasonable to argue that the government should have appealed the decision, but that is now water under the bridge. If I may torture the metaphor, Bill C-7 is the legislative raft that is floating downriver and we are all on it, looking for the best shore upon which to land.

Some of us, it would seem, have a desire to return to the bridge, which is seen as a place that can provide judicial clarity, and would like to row upstream to get that clarity. This sentiment is expressed in two ways: The first is to assert that the view of the Supreme Court on a particular issue in Bill C-7 is already known; the second is to seek a reference to the Supreme Court and to hold the bill, or parts of it, in abeyance.

The problem with this judicial reflex is not that the court does not have a say in the matter; indeed, on Bill C-7, it is a virtual certainty that the court will be asked to rule on the constitutionality of certain provisions in the bill, whatever the final shape of the bill. It is curious, however, that members of a legislative branch of government — the chamber of sober second thought, no less — would seek this solution rather than exercise what is properly within our duty and mandate, which is to assess the merits of the issues before us in order to come up with a piece of legislation that properly engages the Truchon decision and previous court rulings.

The proper place to develop policy is not the courts but Parliament. The Senate, in particular, with its sensitivity to minority rights, is well-placed to weigh the constitutional trade-offs that come with all difficult public policy issues, including MAID.

In the context of government legislation, the assertion that a given provision is unconstitutional should be the beginning of more robust legislative reflection rather than a signal to end debate on that provision. There are, of course, constitutional considerations in all bills, and we have to always be mindful of constitutional violations — indeed, we have to be vigilant against such violations. We also have to ensure that all bills respect constitutional values, even if there may be uncertainty about the constitutionality, as such.

The unconstitutionality argument that is used increasingly in this chamber has the effect of being a conversation-stopper; that is to say a way to end debate on the merits of a particular measure in a bill. It is, to me, a peculiar interpretation of the role of the Senate as a legislative body, which, after all, should be in the business of legislating. We are all familiar with the so-called “dialogic” relationship between the legislature and the courts, especially on the Charter of Rights and Freedoms. However one interprets the means of “dialogue,” it cannot mean that we simply turn to the courts for guidance each and every time we encounter an issue that engages the Charter. We need to play our part in the dialogue by articulating the non-legal considerations that go into any particular provision of a bill, rather than pretending to be Supreme Court justices and second-guessing their decisions. To quote Professor Kent Roach:

A constructive dialogue will occur if the courts focus on issues of principle that are liable to be neglected or finessed in the legislature and the legislature is candid about when it believes that such principles should be limited or denied in particular contexts.

That is precisely what should be happening in our debate on Bill C-7.

To be precise, let me focus briefly on one of the most controversial provisions of this bill, the exclusion of mental illness when it is the sole underlying condition. We will debate this issue starting tomorrow, so I will only touch upon the broad point about how I approach this issue.

Many colleagues feel strongly that mental illness as a sole underlying condition should not be excluded from MAID. It is fair to say that we have heard both sides of this argument during the Legal Committee hearings, and we will no doubt hear more from both sides when we begin our thematic debate tomorrow. This is the kind of exchange that the Senate should be having in its consideration of whether to include mental illness in the MAID regime, because it is how we can contribute to the dialogue with the courts on the constitutionality of excluding mental illness. If the case can be made, for example, that the medical profession does not yet have the tools to assess the MAID criteria for patients with mental illness as a sole underlying condition, then that is the information we should be communicating to the court as a factor in our decision to exclude mental illness in MAID.

Here, again, is Professor Eric Adams, a constitutional law expert:

The most significant question a court will examine in trying to answer this challenge, that expanded access infringes the Constitution, will be whether MAID and its system of protections and safeguards adequately protect the truly vulnerable while allowing the dignity of choice to those who are not.

Answering that question, it seems to me, will turn not on the eloquence of the argument but on the evidence of medical experts.

This same passage was quoted by Senator Carignan, but I want to focus on a different part of it, which is the phrase “not on the eloquence of the argument but on the evidence of the medical experts.” I agree with this approach, which is very different from arguing that the decision of the court is preordained, whether based on previous court decisions, one’s intuition of the Charter or an educated guess at the minds of the justices. Perhaps it is appropriate for students in a constitutional law class to come to a conclusion on how they think the court will decide, but legislators are not bystanders in the legislative process whose job it is to speculate on court rulings; our job is to legislate in a way that engages with court rulings on the Charter. It is not to ask the court to tell us what they think or, worse, to tell the court what we think they think.

That brings us to an underlying issue about Bill C-7 that troubles me and which I know troubles many of you as well. It is that we don’t know that much about the implementation of MAID since Bill C-14 was promulgated barely five years ago, and that we are making changes to this landmark legislation in the absence of a proper review of the experience to date. I think everyone in this chamber wishes that the mandated five-year parliamentary review of MAID had already taken place and that we had the benefit of its findings to inform our deliberations on Bill C-7.

Let’s make sure that the review does go ahead, that it is relevant and thorough — but that is an issue for another day.

The missed opportunity of a proper parliamentary review is something to regret, but it should not paralyze us. It would be wrong to say that we should defeat Bill C-7 or even stall it until the review is completed, because the Truchon decision requires the government to respond, and, as we all know, a response has been delayed a few times already, with the latest deadline set for February 26. It may be that we wish the government had come up with a different response to Truchon, but Bill C-7 is the response we have, and it passed the House of Commons with a comfortable majority. On the core issue of what Bill C-7 is responding to in Truchon — namely, death not reasonably foreseeable — it is difficult to make the case that the unelected upper house should reject the bill.

But Bill C-7 goes beyond the Truchon decision. Rather than limit its scope to the issue of natural death not being reasonably foreseeable, the bill includes other provisions that are not strictly germane to that decision, such as the relaxation of current safeguards for MAID, including the waiting period and the number of witnesses to a MAID request. The government is entirely in its right to add these measures to Bill C-7, but they were not compelled by the court decision to make those changes. It is a little puzzling because there is a general presumption among proponents of the bill that the five-year review should have taken place before something like Bill C-7 — or any adjustments to the MAID regime in general — was contemplated. One can argue that the government had no choice in the case of death not reasonably foreseeable, but surely they had the choice to hold off on removing existing safeguards until the parliamentary review was completed.

The point here is not whether the removal of existing safeguards in Bill C-7 is justified. I am glad those issues are not strictly ones of Charter compliance because it obviates the conversation-stopper argument that I alluded to previously. We will have a thematic debate on safeguards in a few days, and I am looking forward to substantive arguments on the merits of removing those safeguards — or, indeed, adding new ones — based, I hope, on evidence rather than conjecture or legal assertions. We can make up our minds after listening to those arguments.

The problem, rather, is that the government, by adding what I see as optional issues to a bill that could have been narrowly about a response to Truchon, has, in effect, opened the door to revisiting all of Bill C-14. It has invited a re-litigation, if you will, of a number of issues that were debated in Bill C-14 in the absence of evidence from the mandated five-year review.

The impulse to re-litigate goes in both directions, from those who never did much like MAID to start with, and from those who felt that Bill C-14 did not go far enough in the first place. We will see evidence of both in the amendments to come in the days ahead.

My Cartesian brain would have preferred a simple decision rule for this bill that was based on whether or not it responded in a reasonable way to the Truchon decision, but the inclusion of non-Truchon issues has muddied the waters.

I remain open to persuasion, but in general, I do not believe we know enough about the impact and implementation of MAID since 2016 to make major changes to the regime, apart from those that the duly elected government has decided to take because of the necessity to respond to a court decision. In saying this, I am only articulating the intent and spirit of Bill C-14. I would lean in the direction of collecting more evidence on MAID — especially MAID for patients with mental illness — and err on the side of caution.

One final reflection on how we deal with complexity in this bill: Even if we set aside the constitutionality argument against the exclusion of mental illness as a sole underlying condition, making mental illness ineligible for MAID poses a number of regulatory challenges. The definition of mental illness is fluid, which means there will be an ambiguity in determining who qualifies for MAID and who does not, with attendant challenges for professional regulators, not to mention law enforcement.

I don’t take these concerns lightly, and perhaps there are ways of finessing the language in the bill to provide greater clarity. The simple and obvious solution is to, of course, not exclude mental illness even when it is a sole underlying condition, but that is only a solution if your prior belief is that there are no concerns around the ability of medical professionals to assess such patients for MAID criteria. If, however, you do have concerns about assessment competencies, the so-called simple and obvious solution is not a solution but rather an abdication.

Needless to say, the easiest safeguard to regulate is to have no safeguard whatsoever. Regulating medical practice — or, indeed, any professional practice — is never straightforward and often fraught with ambiguity. Just think about sexual touching in medical examinations. We are grateful to professional regulators who have to wrestle with these challenges every day and who seek to continually improve their practice. But our job as legislators is not to make the job of regulators as easy as possible. We would be misguided if we took a decision on a bill that was based more on the level of difficulty in regulation than on the evidence that supported the decision in the first place.

The issue of how to regulate a complicated exemption, such as mental illness as a sole underlying condition, exposes what I believe is the fundamental fissure in the Bill C-7 debate. It is that some have great confidence in the ability of MAID assessors to do their work with accuracy, skill and compassion, consistent with the current law — while others are not so sure. Mental illness is simply a more fraught example of that divide.

The reason for a five-year parliamentary review was presumably to help us bridge that divide based on evidence rather than anecdote. It seems reasonable to me that we should not rush to expand MAID before we have that evidence. I think the Supreme Court can also appreciate that reasoning, which is why I am not as sure as some colleagues are about how the justices will rule on the mental health exclusion.

Colleagues, the clinical practice of medicine operates within a legal framework, which allocates to the profession the obligation to understand health and disease and to provide guidance and treatment accordingly. The guiding principle is science-centred evidence. That evidence starts with clinical observation, continuing dialogue with biological science, and leading to testable evidence of whether the hypotheses are right. This approach has led to the extension of the lifespan by 20 years in Canada in the last century and greatly improved quality of life for Canadians.

But medical science is not perfect. It has, at times, fallen prey to societal pressures to skip the science — the observed evidence — in favour of conviction. The result has been disaster. A poignant example was extremely high-dose chemotherapy to prevent breast cancer recurrence in women at the highest risk levels. Driven by legal argument — in particular, the argument of autonomy — women were offered this treatment in the absence of trials. When the trials were finally done, those so treated were found to have done materially worse. They suffered more and died sooner.

The current pandemic offers further evidence of the consequences of setting the science aside for conviction.

There are no perfect answers to the MAID question. However, the evidence we have from palliative care, among others, is that with proper focus on relieving suffering, the demand for MAID is much diminished. What we don’t know, and what patients and clinicians need to know, is the result of our experience to date. That is the hard clinical data that cannot be willed by philosophic or legal argument.

Colleagues, I offer these reflections as much for my own ongoing deliberation on Bill C-7 as for your edification or your chagrin, as the case may be. I remain open-minded on many of the particularities of the bill and look forward to the thematic debates in the days ahead.

As everyone pretty much agrees, however this bill lands some part of it will end up in the Supreme Court. Let’s give the justices something to think about.