Debate on Senator Joyal’s amendment to the Motion for Concurrence in Commons Amendments and for Non-Insistence Upon Certain Senate Amendments—Bill C-14, medical assistance in dyingPublished on 17 June 2016 Hansard and Statements by Senator James Cowan (retired), Joan Fraser, Lillian Eva Dyck, Mobina Jaffer, Sandra Lovelace Nicholas
Hon. James S. Cowan:
Honourable senators, like my friends Senator Ogilvie and Senator Maltais, I will support Senator Joyal’s amendment because I believe that it represents a simple, reasonable and effective solution to the difficult problem we are now facing.
We have now received a message from the other place concerning our amendments on Bill C-14. The members of that chamber accepted a few of our proposals, amended several more and rejected the others. Most importantly, in my view, they voted to reject the first amendments we adopted here, namely those to bring the eligibility requirements of the bill in line with the constitutional parameters set out by the Supreme Court of Canada in the Carter decision.
Needless to say, I am disappointed. These amendments were the result of many hours of testimony from eminent Canadian witnesses, including some of the most prominent authorities in the country in their areas of expertise. I would have hoped that their views, if not ours, would warrant deeper reflection and more than a casual dismissal along the lines of, well, different people have expressed different views.
Peter Hogg is unquestionably the pre-eminent constitutional authority in the country. He literally wrote the book on constitutional law — Constitutional Law of Canada — a book that has been cited more than 1,627 times in Canadian courts. Surely his opinion, that the bill without our amendment is unconstitutional, deserved more serious consideration by this government.
When I spoke in this chamber on Wednesday, I noted that we had been assured that our recommendations would be carefully and respectfully considered by the government. It’s difficult to accept that this was indeed the case, particularly when the Minister of Justice was publicly recommending the rejection of these critical amendments even before we had completed our work or formally sent our amendments to the other place for their consideration.
Colleagues, I sincerely hope this is not indicative of the attitude of this government toward our work in other matters. It’s not good enough to accept our views when they accord with those of the government, but reject them out of hand — even before they are received — should we disagree with either the government’s interpretation of the Constitution or its policy decisions.
I should note that there were many thoughtful interventions made yesterday in the other place, in which some members sought to draw that chamber’s attention to the evidence that was reflected in our amendments, in particular, in Senator Joyal’s amendment on the eligibility criteria. Unfortunately, those arguments failed to have any impact on the government. Even more unfortunate, in my view, were some of the arguments made yesterday by the Minister of Justice during the debate. She suggested that if our amendment were accepted, this would open the door to a “young person who suffered a spinal cord injury in an accident” accessing medical assistance in dying.
Colleagues, that is simply false. The amendment we passed last week did not in any way expand the eligibility criteria to minors. The bill limits eligibility to persons who are at least 18 years old and nothing in any amendment passed in this chamber changed that. The Carter decision was clearly limited to adult persons, and our amendment did not go beyond the parameters set out in that decision.
Let me be very clear: The major amendment that we passed, and that was summarily rejected in the other place, was directed to bring Bill C-14 in line with the Supreme Court of Canada’s unanimous decision in Carter and, with that, to bringing the bill up to the standard required by the Charter of Rights and Freedoms. It has been said by Senator Sinclair in this chamber, and then repeated by the Minister of Justice through the document she circulated last week — and these are the words of Senator Sinclair — that “The bill does not have to comply with Carter, but the bill does have to comply with the Charter.”
Colleagues, with respect, this is a very dangerous approach to take to law making. The whole premise of the Charter is to set limits on the powers of government and of Parliament. Those limits are upheld and enforced by our courts. If we say we don’t need to respect the courts’ rulings, including those of the highest court in the land, we are distorting, we are turning on its head our constitutional democracy.
The Supreme Court of Canada has stated very clearly that there is a right under the Charter to medical assistance in dying. The court clearly described the class of persons who have dealt with it. Since that decision, we have had a strong ruling by the Alberta Court of Appeal on the same matter. It is simply not for the government or the Parliament of Canada to overturn those decisions of the highest courts in the land, to decide that only certain people within that class could access that Charter right and that others should be denied that right. That is exactly what we will be doing if we pass Bill C-14 without the amendment we adopted in this chamber last week, when we modified the eligibility requirements in order to align them with the Supreme Court of Canada decision in Carter.
We heard extensive evidence from Canada’s leading constitutional authorities that without our amendment, this bill fails to meet the threshold set by the Supreme Court of Canada and will likely be found unconstitutional. In the words of Professor Hogg, “The bill is not consistent with the constitutional parameters set out in the Carter reasons.”
Colleagues, I will not vote for a bill that I believe is unconstitutional, particularly when it deliberately excludes an entire class of citizens who are suffering intolerably, as Senator Ogilvie just told us. Accordingly, I cannot vote in support of Senator Harder’s motion as he introduced it and I will support Senator Joyal’s motion in amendment.
Colleagues, as this will likely be the last time that I will speak on this topic in this chamber, I would like to conclude by reading from just two of the hundreds of e-mails I have received about Bill C-14. These e-mails are a reminder of what this bill is all about and of the very real impact of our actions on Canadians all across the country.
The first one I received yesterday is from a Canadian woman in southwestern Ontario. Here is part of what she wrote:
I want you to think about how, if this bill is passed without the “Joyal” amendment of removing “natural death is reasonably foreseeable,” matters will look like in everyday living. I hope the following will bring to life what myself and others will be required to do to access MAID.
I have a degenerative muscle disease that is incurable and in time I will die by asphyxiation. My condition is hereditary and I have watched my brother succumb to this disease and my sister has been given 6-24 months left to endure this hideous disease. Some people may say she has 6-24 months to “LIVE”. . . she is not living, she is existing, a prisoner in her own body.
The writer then described the difficulties she experienced dealing with her doctors and other health authorities, and concluded her email as follows:
So where does that leave me . . . . I believe I have only one option. I will wait for the law to be passed in all likelihood with the reasonably foreseeable clause intact and then starve and dehydrate myself to the point of my death being reasonably foreseeable and then Doctor B “may” decide to help me without a court order but by then I will be too weak to care. These are my realities and these will be the realities of so many Canadians if you allow the present bill to be passed without ALL of your thoughtful amendments kept intact.
I want to thank you for standing up for Canadians like me and for making our “minority” voices heard. . . . It means so very much to me and my family and to the thousands of Canadians like me.
Lastly, I struggled whether to sign my name to this letter, it is such a personal decision to seek MAID but then I thought of the courageous women before me, Sue Rodriguez, Kay Carter and Gloria Taylor and without them I would never have the opportunity to send this letter. They say if you want something done, send a woman to do it. Please think of them, myself and the thousands of Canadians who are counting on you to uphold our constitutional rights and to fight our fight, please don’t let them win the war.
The second email I would like to read to you came this morning, from a woman in my home province of Nova Scotia. It was an email to the Minister of Justice and the Minister of Health, on which I was copied, and some of you may have been copied as well. Here is part of what she wrote:
I am contacting you to express my profound disgust at the decision of MP’s to restrict access to assisted dying to those individuals whose end of life is reasonably foreseeable. . . .
I have a devastating disability that began in 1985 after my son was born. This illness has caused unimaginable havoc in my life. As a consequence of this disability I have been robbed of my freedom; dignity; independence; mobility and privacy. This is a progressive and incurable illness that has caused unbearable, relentless suffering in my life. There is not a sliver of hope that I will improve or that any eventual treatment will help me. I was told this by specialists at the National Institute of Health in Washington DC when I was a patient there a year and a half ago. They informed me that even if a treatment were found, my muscle damage is irreversible.
Now your government is telling Canadians facing devastating consequences of incurable disease to just suck it up. This contempt for the Supreme Court’s decision is a slap in the face to Canadians who were asked to wait an additional several months to allow the government to “get it right”. Because of this cowardly decision to refuse desperate people facing unbearable suffering the right to an assisted death, individuals will almost certainly take measures into their own hands by starving themselves or other steps. They will die horrible deaths alone by methods too terrible to contemplate, all because of this cowardly decision by government. Why is it that you do not trust competent adults to make decisions affecting their own destiny, instead condemning them to the ravages of incurable illness to the point where they are stripped of their quality of life?
Please respect the Supreme Court’s decision and give consideration to the many people whose lives will end in solitary despair instead of the right to a peaceful, dignified death that is now the broken promise to Canadians for which this government is squarely to blame.
Colleagues, unfortunately these stories are not unique. They are the stories of countless other Canadians we would be abandoning if we agree to let Bill C-14 come into law with the provision limiting access to medically assisted death to those who are near death. You’ve heard their stories, and so have I. How can we turn away and ignore their pleas?
As I noted at the beginning of my remarks, I believe Senator Joyal’s amendment to Senator Harder’s motion provides a reasonable solution to a difficult dilemma we are all facing. This motion in amendment would pass into law virtually the entirety of Bill C-14, including all of its valuable safeguards, while guaranteeing that the provision limiting Canadians’ access to medical assistance in dying would be held in abeyance until the Supreme Court of Canada has had an opportunity to pronounce on its constitutionality.
With the acceptance of this motion in amendment, the Charter rights of all Canadians would be respected, particularly those Canadians like the unfortunate women who wrote to me to describe the nightmares they are living. Theirs are voices we have no right to ignore.
Hon. Mobina S. B. Jaffer:
Honourable senators, I will be speaking on the amendment, but before I do, I would like to clarify something that was said earlier by Senator Sinclair.
When the government requested an extension of time from the court for debate on assisted dying, the judges were Abella, Wagner, Gascon, Côté and Karakatsanis.
Judge Karakatsanis asked the government’s lawyer:
. . . can I ask you this: Does your position on the Québec legislation mean that you accept that it complies with Carter? I’m thinking particularly about somebody has to be a la fin de vie whereas in Carter we rejected terminally ill.
Honourable senators, I point out to you that Carter rejected “terminally ill.”
Honourable senators, I rise to support Senator Joyal’s amendment, as I believe that we or the government will be able to immediately put in the safeguards to protect Canadians and provide another opportunity for Canadians to have the eligibility sections addressed by the courts. At the moment, if these eligibility sections are not addressed by the government, it will be individual Canadians, one case at a time, bringing these cases to court. Honourable senators, from all that we have heard, this would be a terrible burden for Canadians.
We have all had many people contact us; and as Senator Cowan did, I would also like to point out to you why it is so important that we listen. I’m not lecturing; don’t think that. I genuinely feel that, with all the emails we have read, all the letters we have received, we must listen to Canadians.
The Phelps family wrote to many of us, saying they have had three terrible experiences of seeing their family members torture themselves because medically assisted dying was unavailable to them. Laura Phelps shared with us her story about the excruciating death of her grandmother, father and mother.
Laura’s grandmother, Dayle Johnson, suffered from colon cancer and starved and dehydrated herself for 12 days before passing.
Laura’s father, Ronald Phelps, who had amputated arms and legs, decided to starve and dehydrate himself. He did not want his last vestiges of dignity taken away. It took him 16 days to pass.
Dorothy Phelps, Laura’s mother, suffered from vascular dementia as a result of a major stroke in 2013. Dorothy’s neurologist had told her she would have more strokes. She also starved herself to death, and she survived for six days.
Honourable senators, let us look at what Carter said. Carter mentions individuals suffering from a grievous and irremediable condition, including an illness, disease or disability; the condition causes enduring suffering that is intolerable to the individual; and “irremediable” does not require the patient to take treatments that are not acceptable to the individual.
Now let us look at how restrictive the eligibility part of this bill is. The bill accepts, as in Carter, that the individual suffers from a grievous and irremediable condition, including an illness, disease or disability. However, it then goes on to restrict the rights of Canadians. It says you have to have a serious and incurable illness, disease or disability; that you are in an advanced state of irreversible decline in capability; that your natural death has become reasonably foreseeable; and that the illness, disease, disability or state of decline causes intolerable and enduring physical suffering.
Honourable senators, the two ministers and the House of Commons have asked us to accept the bill. Why? Because they say we need a national bill so that there is harmonization across the country. I accept that. The Joyal amendment accepts that.
The House of Commons and the ministers say we need certainty. I accept that. The Joyal amendment accepts that.
The House of Commons and the ministers say we need safeguards now. I accept that. The Joyal amendment accepts that.
Honourable senators, I stand before you and say let us heed the many Canadians — Canadians with multiple sclerosis, ALS and Huntington’s disease.
I come from B.C. Sue Rodriguez is from my province. I’ll never forget when she appeared on television and said, “Give me the chance to live longer with my son. I don’t want to commit suicide now; I want to live longer. Then, when I’m ready, give me the chance to die with dignity. Give me that choice.”
At that time, the Supreme Court denied her that chance. Since then, the Supreme Court of Canada has evolved, as have the wishes of Canadians. Today I stand here and say let us heed the cries of Canadians. Let us accept this bill. Let us have a national bill, but let us have the eligibility section returned to the Supreme Court of Canada so that each and every Canadian’s voice is heard.
Hon. Lillian Eva Dyck:
Honourable senators, I stand here as a woman. I stand here also as an Aboriginal woman. I have been in this chamber for 11 years. I have served as critic for a lot of bills that have affected First Nations people, and I have seen us trample on the rights of those people for a decade. We have ignored their constitutional rights. They have come before us, so I definitely see my role as standing up for minorities.
In this case, I think it’s very clear that we’re creating two classes of people with the same disease, and I feel we have a duty to protect the rights of those people. Even though the reality of the situation may be challenging, the House of Commons does not see it.
But, as pointed out by my learned colleague Senator Joyal, we are here to protect minorities. I wholeheartedly support Senator Joyal’s amendment. I firmly believe that we have to stand up and fight for the rights of those people who will be denied this right. As pointed out by Senator Cowan and Senator Jaffer, those people who are not seen as being reasonably near a natural death will be forced to stop eating, stop drinking and make themselves so sick that they may then be seen as eligible for medical assistance in dying.
The reality for them is we have to stand up for them. We are the house that should be looking after their interests because their interests reflect a small group, and if we don’t stand up for them, who the heck is going to? So I wholeheartedly support Senator Joyal’s amendment.
Some Hon. Senators: Hear, hear!
Hon. Joan Fraser (Deputy Leader of the Senate Liberals):
Two quick points, colleagues. First, with the greatest respect for Senator Patterson, a senator for whom I do have great respect, I would remind us all that the House of Commons is not Parliament. It is a turn of phrase that is often used to say “Parliament has done this” or “Parliament has done that” when what is meant is the House of Commons.
If it were just a turn of phrase, that would be one thing, but in fact, it speaks to an underlying attitude. And if there is any class of persons who ought to take seriously the fact that Parliament consists of the House of Commons, the Senate and the Queen, it is surely the people in this chamber.
The second point I wish to make is that there seems to be a very wide degree of agreement that, one way or another, the provisions in Bill C-14 concerning eligibility, if adopted as proposed by the government, will end up at the Supreme Court. The question before us, therefore, is not whether those provisions should go to the Supreme Court. It is: How should that be done?
Senator Joyal’s amendment provides a clean and comparatively speedy way to solve that dilemma, and it would be done at public expense by the Government of Canada. If we do not accept Parliament’s responsibility to get this issue decided, what are we doing? We are abdicating that responsibility to individual Canadians, many of whom are hard-pressed to pay any legal bills at all, let alone the cost of fighting a case all the way to the Supreme Court of Canada against the Government of Canada. That is a terrible abdication of our responsibility.
Perhaps in some provinces, if you are really poor, Legal Aid might cover this legal adventure, but not in all provinces and probably not in most. That would still not affect the class of people who have too much income to be eligible for Legal Aid but who are, by any other measure, hard-pressed when faced with the costs of these legal experiences.
I think we’re failing in our duty to them in a grievous way if we refuse to adopt and face our responsibility.
Some Hon. Senators: Hear, hear!
Hon. Sandra Lovelace Nicholas:
Honourable senators, I agree with the amendment because in order for me to protect my minority rights, I had to go to the Supreme Court of Canada. I don’t think that’s right. So we should vote for this amendment.
Some Hon. Senators: Hear, hear!