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Senator Joseph A. Day—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)

Senator Joseph A. Day—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)

Senator Joseph A. Day—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)


Published on 15 June 2016
Hansard and Statements by Senator Joseph Day

Hon. Joseph A. Day:

Honourable senators, each of us have received a flood of messages on virtually every aspect of medically assisted dying and this legislation, Bill C-14.

The legislation is shared jurisdiction between the federal government under criminal law and health care, which is primarily the responsibility of the provinces. We need to avoid the temptation to spread criminal law into provincial jurisdiction. Drafters of this legislation were well aware of this separation of powers, but the heat of this debate, we may have sometimes been somewhat less disciplined in this regard.

As we proceed with third reading, we are mindful of what Senator Sinclair said a few days ago about the defining nature of what Bill C-14 entails and our opportunity to make a bold statement of who we are as a nation.

My remarks at this stage of the debate will reflect some of my observations about the debate thus far. Canadians are commenting to us in letters and in phone calls, which have exposed many loose ends in this legislation.

Price Carter, the son of Kay Carter, one of the appellants in the Supreme Court matter who chose to die in Switzerland beyond our restrictive environment on assisted dying, wrote in The Globe and Mail last week. Many of you may well have seen the article. He explained many of the inadequacies he saw in Bill C-14 as it was presented.

The amendments we have adopted have improved, in my view, the proposed legislation, but we have a ways to go yet, perhaps not at this time but in the near future.

I’m reminded of the expression that we must avoid missing out on the good in pursuit of perfection, and I would apply that to the work we are doing on this particular bill. The bill is not perfect, but it is a good step in the right direction. Some of the shortcomings are highlighted in clause 9.1, which incidentally was added by the members of the House of Commons.

Legalization of medically supervised dying is both complex and emotionally difficult for legislators. Parliamentarians have worked long hours on this matter, and we’ve taken leadership from those who worked on these particular matters on the joint committee. We then did the pre-study, followed by extensive committee work both here and in the House of Commons. Then we’ve had several days, if not weeks, of debate in this chamber.

How does one get it right? There are many answers needed to ensure tightly controlled national standards that are transparent, trustworthy and effective. The issue crosses partisan and religious ideologies, encompassing moral, legal and ethical questions. It is as deeply personal to Canadians as any issue that has ever been debated here in this chamber.

Many senators have explained their motivation by sharing their very personal experiences. Senator White’s tribute to his parents’ suffering expresses that eloquently. Senator Neufeld has stated that Canadians want freedom to dictate when and if they die, and Canadians want to die with dignity.

Perhaps we need to have a broader discussion about death itself as part of the cycle of life. I believe that in part is what Canadians are telling us. Future research and dialogue will be necessary to find the balance that we have been looking for on these many issues. Clause 9.1 may help us in relation to some of the other matters, but some of the matters will be in the jurisdiction of the provinces.

Medically assisted dying is largely within the Canadian health system. Wherever there might be discrepancies, complexities and conflicts between the federal government’s position and those of the provinces, the federal regulatory landscape must prevail. There should never be localized tweaking of nationally mandated standards. We need a national standard. It’s the Criminal Code standard that we’ve been looking for, and that is Bill C-14.

Senator Tkachuk lists the names of prominent Canadians who have stated that Bill C-14 does not get it right, and there are areas of the assisted dying landscape that provoke ongoing debate.

It’s clear that one of the areas, honourable senators, that must be well established is the ability to opt out. It should be fairly clear that there must be provisions without qualification in the federal regulatory framework for assisted dying applicants to opt out of the process at any stage.

A change of mind should be regarded as a no-brainer. Without qualification, there should clearly be no hint of encouraging the applicant not to withdraw from the assisted dying application. In those cases, there should be no discussion whatsoever. The applicant has changed his or her mind. That’s it, period.

In her remarks before us, the Minister of Justice stated that she believed we needed more time to get things right. I agree with her in part. Her dream is that clause 9.1 will serve that purpose. Issues affecting mature minors, advance requests and mental illness are of concern to all Canadians. These matters must ultimately be dealt with by Parliament. The Canadian public expects no less of us.

I am delighted that at this pivotal moment in our parliamentary history, in the middle of such an important issue, that my colleagues and I were not expected to follow the beck and call of the government of the day or of a particular political party. Plainly whipping a vote on the subject matter of this legislation would have been wrong.

I am proud of the independent approach that individual senators are pursuing with respect to this bill. Initially there was an attempt to force senators into quick and hasty action due to the Supreme Court of Canada decision. The thorough work that Senator Jaffer pursued revealed June 6 to have been a date that was not as critical as it might initially have seemed to have been. The sky doesn’t collapse on that particular date at the whim or direction of the executive branch, with or without judicial prodding. An arbitrary date is unacceptable when that date prevents us from doing a thorough and complete job, as we are expected to do. Senator Jaffer’s work shone an intense light on reality, making a solid case for doing it right.

I believe that it’s irresponsible for us to hold our collective parliamentary noses and let the incompleteness of the task slide into the hazy and unknown future. The more of this work we can achieve now, in my view, the better. I was very pleased that the second portion of Senator Lankin’s motion, with respect to producing a result out of the research and the work under clause 9.1, was resurrected through the efforts of Senator Eggleton last evening. We have that, which will help move this along more quickly.

Honourable senators, assisted dying should never be a substitute for palliative care. Our health minister has stated that only 15 per cent of Canadians have access to high-quality palliative care when they need it. The Standing Senate Committee on Social Affairs, Science and Technology studied the issue in numerous hearings during the spring of this year. The most dramatic requirement for high-quality palliative health care is the challenge of providing training for those who will work in the field.

How can the assisted-dying process be fair and even-handed if 85 per cent of Canadians do not have access to alternatives through the palliative care resources?

I was very pleased that Senator Eaton brought forward that particular amendment. Much of the international literature on the subject reminds us that the lack of adequate palliative care should not be an excuse to accelerated assisted-dying applications. Many doctors assert that the chatter of assisted dying would become somewhat muted if patients could be assured that they would die in comfort, without pain, without future medical intervention and with dignity.

I’m not certain that the amendments we adopted from Senator Eaton’s amendment will solve the lack of palliative care in Canada. Major investment in palliative care could provide that balanced approach to the assisted dying challenge, but we need a firm government timeline to enhance palliative care throughout the country.

There is a shortage of comprehensive counselling as well, and that applies throughout Canada. Not only should assisted-dying applicants have appropriate access to such resources, but that should be an essential part of the entire process. Comprehensive approaches to the issue will be needed more and more as end-of- life applications increasingly emerge. I believe that that will happen with our aging population.

Our health providers will need to boost dramatically the availability of counselling tools to respond to that possibility. I expect that a new regulatory framework of safeguards will be required as well to assist the breadth and depth of end-of-life applications.

As Senator Cowan stated, I believe that the Canadian public is far ahead of the government, of Bill C-14 and of both houses of Parliament in the general application of doctor-assisted dying.

What about the physician’s traditional role as a healer? That has been commented upon on a number of occasions. There has always been a big difference, honourable senators, between actively trying to prolong someone’s life as opposed to letting someone die in as comfortable a situation as possible.

Assisted dying is quite a change from the latter, commonly employed practice that is engaged in with the wink-wink consent of loved ones when they realize there is no hope of recovery for a family member. That is, keep the patient comfortable and without pain but take no extraordinary measures to prolong life. Morphine is being used regularly in hospitals and nursing homes. This provides for a quickening of death but is not recognized in that regard. It is recognized as providing comfort and reducing pain. It is a key aspect of the advance directive entailed in the living will.

If honourable senators would recognize the living will as the next step of a future directive, that would solve a lot of the anguish that we are reading in the letters that are being forwarded to us.

Honourable senators, those are my points —

The Hon. the Speaker: Senator Day, your time has expired. Are you asking for more time?

Senator Day: I could be finished in two minutes, if I could have two minutes to do so.

The Hon. the Speaker: Is leave granted, honourable senators?

Hon. Senators: Agreed.

Senator Day: So, honourable senators, those are generally my comments with respect to some of the issues as I sat through the debate here over the past several weeks. I have been very proud of all of us for the work that we’ve done on this particular matter.

I would now like to comment on the process. If we send this bill back to the House of Commons and they decide to accept the amendments, then that’s wonderful. If they decide not to and send it back to us, then we will be required to stand up and make a decision as to whether we stand by our amendments or not. That is the phase we were at in the beginning of Mr. Harper’s government with Bill C-2. It was sent back after the house looked at it and said, “We’re not going to take any of your amendments.” We had 150 of them, and they said, “We’re not taking those,” and they sent the bill back. We didn’t have a formal hearing on it. We set the time up to begin formal hearings again, and then the minister saw that we were fixed in our position, and the minister approached us. I led the debate from the Senate point of view on that, and we worked out a compromise. That’s what legislation is in the end, a compromise. Positioning will happen from both sides. In the end, we will get together and come up with a reasonable resolution of this matter.

Some Hon. Senators: Hear, hear!

Senator Day: Thank you, honourable senators. I will be voting for this particular legislation, as amended.

 

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