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 Serge Joyal
Hon. Serge Joyal:
Honourable senators, the opening remarks of the government leader would of course trigger a very animated debate if this morning we were called to define the role of the Senate because, according to his suggestion, we are here to inquire, to urge and to consider. What about voting and amending, as the Court of Appeal of Quebec in the Senate Reference and the Supreme Court of Canada have confirmed? We are a legislative house, bringing a different perspective to the study of legislation. What is the different perspective that we are bringing to the study of legislation?
First, we are the only stable house of Parliament. I repeat — the only stable house of Parliament. We bring to the consideration of legislation historical perspective. In other words, we are the institutional memory of Parliament because this house never ceases to exist in its membership, while the other house is empty once it is prorogued. So our permanent status helps us to understand the historical perspective of how an elected majority behaves in Parliament. We have had it repeatedly thrown in our faces in the other place that we are not elected; we have to defer to public opinion; we have to take into consideration that they answer for their deeds, while we can do anything and we have no responsibility really.
Well, honourable senators, let’s think a while. Let’s go back to a couple of examples when the other place decided to join in on both sides to use their power of an elected majority to strip Canadians from their rights.
Remember, we have eight paintings of the First World War here around this chamber. Well, you know what happened when the war was declared and Canada decided to participate? Parliament was called back in August of 1914 and there were two bills tabled in the other place. The government was Tory and the opposition was Liberal. Of those two bills, one was to amend the immigration acts to declare the status of “enemy alien.” And the other bill was the War Measures Act.
In those two bills, adopted unanimously by the other place, there were two fundamental failures concerning Canadian rights. The first one in relation to the foreign alien touched the Ukrainians. Our friends Senator Andreychuk and Senator Tkachuk could testify to that. Let me read to you what the elected majority in the other place did with the popular mandate — Prime Minister Borden and Leader of the Opposition Wilfrid Laurier, somebody that Senator Pratte admires a lot. Listen to what they did. Even though there was never any evidence of disloyalty on their part, thousands of Ukrainians and other Europeans were imprisoned needlessly and forced to do heavy labour in 20 internment camps located in the country’s frontier hinterland during the first national internment operations. Tens of thousands of others designated as enemy aliens were obliged to carry identity documents and report regularly to the police.
That’s the elected majority. That’s what an elected majority can do. An elected majority can do more. Many were subjected to other state-sanctioned indignities, including disenfranchisement, restrictions on their freedom of speech, movement and association, deportation and confiscation of what little wealth they had, some of which was never returned.
Men, women and children suffered not because of anything they had done, only because of who they were and where they had come from.
That’s the elected majority. It was for very good reasons — to protect national unity in the face of an enemy. The country was at war. Is there a bigger justification to strip citizens of their rights than protecting the security of the country?
Then there was the War Measures Act. The War Measures Act was proposed by then-Minister of Justice Doherty. It removed even habeas corpus, Senator Baker. What happened? That bill came in the Senate. A senator, James Kerr, senator from Ontario, said, “Listen, guys, this is unacceptable. We can’t strip habeas corpus from the rights of Canadians. In the British Empire, they have enjoyed habeas corpus since the Great Charter of 1215.” Well, it is the war, the security of the country, a fair balance between the interests of the country and the interests of those citizens — well, no big deal. They’re going to be interned, most of them up to 1920, no compensation. It was only in 2013 that the government of Prime Minister Harper did the right thing by recognizing the unacceptable deeds that the elected majority in the other place did.
The elected majority did other things in our history that I need to remind you of, honourable senators.
In World War II, who was the enemy? It was the Japanese, Japanese Canadians and their related countries. What did we do with the Japanese Canadians, invoking the War Measures Act, supported by the other elected majority? Well, we put them in camps, no problem. National security needs us to maintain the security of the country at the expense of the rights of the Japanese Canadians. Think about that — the elected majority.
Then the elected majority adopted an immigration act, Senator Frum, and you know very well about it. You know what happened with that immigration act. It was to strip the ability of all Jews who would be coming to Canada to have access to this country. You remember that famous sentence, “None is too many.” When the ship tried to land in Canada with 950 passengers, Canada said no. The deputy minister of immigration at that time, Frederick Blair, the head of the immigration department, the former assistant deputy of immigration — I insist on that status. Well, he was implementing the legislation that was adopted by the elected majority. He was even happy to report the following in letter to the prime minister of the day, Mackenzie King:
Pressure on the part of the Jewish people to get into Canada has never been greater than it is now and I am glad to be able to add, after thirty-five years experience here, that it was never so well controlled.
That was under the elected majority. Honourable senators, when you enter this chamber, pay a second of attention to the bust of Senator Cairine Wilson. She was the senator to stand up against Mr. Blair and the government of the day to defend the capacity to access Canada for the Jews who were exterminated by the millions in Europe during the war.
That was the policy of the elected majority in Canada at that time, and one senator stood up against that. She is there in the entrance of this chamber. Look at her each day when you enter this chamber, honourable senators, because it will remind you of your responsibility. Your responsibility is to stand for minorities. And if you don’t stand for minorities, honourable senators, look at the way the demography of this country is evolving.
Who sits in the seat of former Senator James Kerr in this chamber? Who sits in the seat of Cairine Wilson? It is you, Senator Frum, who sits in the seat of Cairine Wilson. You defend the minority that is still being persecuted, and we know how. We are supposedly at war against the Islamic State, and they focus essentially, as we know, on the Jewish people.
We are a country of minorities. Look at us individually where we come from, and there will be more diversity in the years to come. If there is no chamber of Parliament in this Canada — not a democracy, a parliamentary democracy; there is a difference between the two. It means that the elected majority cannot do its will all the time at the expense of the minority. That’s the essential feature of our chamber.
That’s important in that debate, honourable senators, because today we are accused of expanding access to MAID. That’s what has been said in the other place. We are expanding MAID.
Honourable senators, we are not expanding MAID. We are essentially recognizing those who have been granted the right to MAID by the Supreme Court; the terminally ill and the non- terminally ill who find themselves in the same unbearable physical suffering have the right to MAID. That’s what the court has said.
The government accuses us of expanding. We’re not expanding. This bill restricts access to MAID.
I was reading in the National Post of June 6 the case of Dr. Sutherland. Dr. Sutherland is a family doctor, and he has been living with ALS for eight years. While Dr. Sutherland said he’s not ready to die, if he were to lose control of his eye muscles, which he uses to communicate through a computerized device, he says he would choose physician-assisted death. He said: “I find comfort in the fact that I can now choose a gentle and humane death.” With what we’re doing today, will Dr. Sutherland rush to decide what he wants to do? When this bill is adopted, it is over for you. You are not terminally ill. You have unbearable suffering but you are not terminally ill.
Don’t ask me, honourable senators, if I want to vote for that bill. Yes, I want to vote for a bill. I want to vote for a bill that enshrines the safeguards that Bill C-14 contains. I want to vote for a bill that respects the rights of Canadians who have been recognized by the court to have access to MAID.
Of course, I know we are in a situation of debate and reflection between the two chambers. I don’t like the word “Ping-Pong,” honourable senators, because it trivializes our role. Our role is not to play ball with the other place. Our role is to do conscientious deep reflection on a bill.
Of course, now we have a situation whereby the House of Commons has refused the essential element that would make that bill constitutional in the eyes of many. I wrestle with this. I understood the argument that there is some kind of uncertainty in the regime because it varies from one province to the other in terms of directives to prosecutors and in terms of guidelines. I recognize that.
I think there’s a way for us to solve the impasse that we might have with the other place on the essential element of this bill, and the proposal I want to make to you, honourable senators, is the following. We would adopt the bill as it stands now, but we would do one thing. We would suspend the implementation of the section of the bill that is the object of dispute on the nature of its constitutionality and medical implementation up to the time that the government will have requested the Supreme Court’s ruling on its constitutionality.
So we will get all of the bill tomorrow. Dr. Sutherland will have access, after the enactment of the legislation, after royal sanction. But in relation to the limit that the government put in the bill, we, the government, would ask the Supreme Court to rule on its constitutionality. Once the court rules, then that section would be proclaimed constitutional or remain suspended or deleted, if that is the court’s conclusion.
Honourable senators, this is a fair compromise. It addresses the issue of uncertainty that has been mentioned in our discussion and often in the media by people who are interested in this issue. On the other hand, it would make the bill constitutional.
Honourable senators, let us not fool ourselves. This is not the last phase of this debate. On the contrary, it is just a step. Justice Perell, yesterday in a decision of the Superior Court of Ontario — yesterday, honourable senators, not two weeks ago or a month ago, like in the Court of Appeal of Alberta.
Can I request five more minutes, honourable senators?
Hon. Senators: Agreed.
Senator Joyal: Yesterday, Justice Perell, the same justice who ruled that a patient in Ontario could have access to MAID without being terminally ill, said the following:
The fourth phase will begin with the enactment of new legislation. That legislation is presently being debated in the House of Commons and in the Senate. It is likely that the fourth phase will not be the end of the saga and those subsequent phases will be demarcated by litigation and more legislation.
When a justice refers to the fact that the question is being debated in Parliament, there is pause to reflect. I would say this is an underlying message that more litigation and legislation might come.
Justice Perell concluded by stating the following:
Arguably, the medical establishment is far better situated to supervise this constitutionally protected right, but pending a constitutionally sound enactment —
— I repeat —
— pending a constitutionally sound enactment means the legislation has to be constitutionally sound. It falls on the court to protect the constitutional right and the rule of law.
There is a message there, honourable senators. If we adopt a bill that, at its first phase, is a bill that has a defect and the courts are aware that there is debate on that bill — and the Court of Appeal of Alberta stated this a month ago — we run the risk of not assuming our constitutional role to protect those who will be stripped of their right to access MAID.
The proposal is essentially to cure the uncertainty by adopting the bill but to reserve the section that is the object of so much question and uncertainty, legally and medically.
I insist that there is a problem of interpretation of this bill in relation to —
Senator Tardif: You need to read the amendment.
Senator Joyal: Honourable senators, I will first introduce my amendment.
There is a problem professionally interpreting the concept of natural death that is reasonably foreseeable.
Motion in Amendment
Hon. Serge Joyal: Therefore, honourable senators, I move:
That the motion moved by the Honourable Senator Harder be not now adopted, but that it be amended by replacing the second paragraph with the following:
“That the Senate do not insist on its amendment 2(a);
That, in lieu of its amendments 2(b), 2(c)(ii) and 2(c) (iii), Bill C-14 be amended, on page 6, by adding after line 21 the following:
“(2.1) Subject to subsection (2.2), paragraph 241.2(2) (d) of the Criminal Code, as enacted by section 3 of An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), comes into force on a day to be fixed by order of the Governor in Council.
(2.2) No order may be made under subsection (2.1) unless the Supreme Court of Canada has rendered an opinion, pursuant to section 53 of the Supreme Court Act, stating that paragraph 241.2(2)(d) of the Criminal Code, as enacted by section 3 of An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), is consistent with the Canadian Charter of Rights and Freedoms.”; and”.
Thank you, honourable senators.