Senator Serge Joyal—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 Serge Joyal
Hon. Serge Joyal:
Thank you, Your Honour.
Honourable senators, after those 12 days of debate and reflection, I have the conviction that I am a different person. I would say I’m more human in a way because of the testimony of our colleagues: Senator Verner, who very candidly avowed in front of us her cancer, and this afternoon when I heard our colleague Senator Tardif delivering the message of Senator Dawson, also fighting a cancer with all the strength and conviction that we know both of them have.
I’m very grateful personally to all the senators. I’m looking at Senator Wallin, Senator Manning, just a couple of minutes ago, and other senators who came forward very openly, in almost an intimate manner. They shared with us the plight of their life in relation to life and death. That’s why I’m telling you I feel I’m a different person, maybe a better person also, because that debate has brought every one of us closer to one another.
As you know, most of the time we debate issues that are to a point outside of us. We debate issues of transport, but I’m not a bus driver. We debate issues related to ports. We debate the issue of administration of finance. I’m looking at our colleagues Senator Day and Senator Tkachuk in the Banking Committee. I’m not a banker, but of course I have some accounts in banks.
Senator Tkachuk: Tell us more.
Senator Joyal: My income taxes were published last year, so you should know about it.
This issue has brought the best of us into the open. I was asking myself, to whom am I indebted for that? Whom should I thank for that? I think Senator Plett said it in the plainest and most direct way: the Supreme Court. If the Supreme Court had not ruled in the Carter decision, we would not be here tonight discussing this after 12 days of exchanging views, and we would not be wrestling with three of the most important questions that we, as legislators in the Senate, have to address.
What are those three questions? The first one was raised by our esteemed colleague Senator Sinclair: Were we founded, to a point, to outwill the House of Commons? It is a very serious question, because we have a fresh government with a popular mandate. The Prime Minister is skyrocketing in the polls, and the government is young and enthusiastic. We should not stand in the middle of that. Who can fight the Prime Minister’s popularity? I think one of you raised that question today.
I want to say something to Senator Sinclair that my colleague Senator Moore raised. I remember very well because I was on that committee at the time, on the Legal and Constitutional Affairs Committee, and the question was raised: Were we founded to amend the youth criminal justice bill that came to us after a year and a half of debate in the House of Commons? It had 160 amendments. I checked the record; 160 amendments were applied to the bill in the other place.
When Anne McLellan, then Minister of Justice, came to testify in front of the Legal and Constitutional Affairs Committee, she said the following:
. . . I do not believe any amendments are necessary in relation to that area. This proposed legislation speaks directly to the circumstances of Aboriginal people. It directs the court to respond to the circumstances of Aboriginal young people.
The question put to her was essentially in respect to the international Convention on the Rights of the Child. In the bill, as our colleague Senator Moore has proposed, there was absolutely no mention of Aboriginal youth. That was in 2001, more than 14 years ago. We amended the bill against the will of the Minister of Justice.
Our colleague Senator Cools, who was on the committee, asked the following question, if I can quote her:
The minister has told us that no amendments are necessary to this bill. She has said that quite strongly and forcefully. Consequently, it has caused a degree of distress and agitation among senators.
Since no amendments are necessary, could the minister tell us, in her view, what is the role of the House of Commons and the Senate in legislation in this country?
That was the very question of Senator Sinclair. It was almost taken out of his mouth, asked by his seat colleague Senator Cools 14 years ago in relation to the plight of Aboriginal people.
When I read your Truth and Reconciliation Commission report, which was tabled a year ago, June 2015, I read section 38 of your report:
We call upon the federal, provincial, territorial and Aboriginal governments to commit to eliminating the overrepresentation of Aboriginal youth in custody over the next decade.
So it seems to me that when I look into perspectives against the minister’s wishes, repeated three times at the committee and in the other place, with the pressure of the government of the day, against senators who were members of that committee, I want to remind you of the status of Senator Grafstein, who was on the committee with me, Senator Cools and Senator Moore. You know what happened to Senator Grafstein after we voted on the amendment in committee? He was kicked out of the committee by the then leadership.
So if you think that when we vote and stand up against the will of the government on an issue that calls upon the respect of minority rights for minorities who have been the object of systemic discrimination for 150 years and there are no consequences, I think the Senate has been founded to stand by such an amendment.
I will tell you who placed the winning vote: It was former Senator Hervieux-Payette. She was sitting beside me, and she never told me at any time during that debate how she would be voting. When we voted in support of the amendment, with the support of the opposition of the time, we won by one vote.
So I think that, honourable senators, these questions are real. They are as real as the objective of the former government to change the structure of this institution.
Seven iterations of bills were tabled in this place and in the other place to have senators elected. Some of you might remember those debates. It was not that long ago, 2005-06. The first bill introduced by the new government, which had received an electoral mandate to reform the institution, was printed into the platform of the Conservative Party. It was with respect to reform of the Senate, one of the foremost five objectives of the new government. We studied that bill at the Legal and Constitutional Affairs Committee, and we concluded that it was not constitutional.
Senator Cowan would testify to that. He had just arrived in the Senate at the time, and he asked me: “Can we oppose the government, which has the popular mandate on restructuring the institution?” I will put it in simple terms: We stick to our guns.
Seven times the bill was reintroduced, and each time we proposed that the government refer the bill to the Supreme Court for a ruling. As I say it here, the government of the Right Honourable Stephen Harper had the wisdom to come to that conclusion. To honourable senators who have just been appointed, you would not be sitting in your seats today if that bill had been adopted, because you would have had to run to sit in this place instead of being appointed.
So I think it’s a very serious issue that the Supreme Court, nine judges, concluded that those bills were not constitutional. Each time, on seven occasions, various ministers of justice came to us to tell us that they were absolutely convinced the bill was constitutional. Were we founded to maintain our position on principle?
Honourable senators, I think that when a minority like the Aboriginal people is at stake in a bill — not protected, not recognized — and there is any concern about the discrimination that has plagued them for so many centuries, we were founded to stick to the will of the other place. Why, honourable senators? I’ll tell you why. Because we are the federal chamber of Parliament. That is the fundamental difference between them and us, not that they are elected and we are appointed. That’s not the main difference. The main difference is that they are a chamber that is designated by the majority of the population, and we know how the majority serves its interests. This chamber has been structured to protect the minorities. So by our very being, as a legislative chamber, our role is first to look after the minorities.
There has been a lot of speculation, honourable senators. What happens if the house refuses your bill and comes back with no amendments, or with three amendments, or accepts the second but not the third one? Honourable senators, I would say cool off. Ask yourself who we are and where you come from. You have been appointed here to be independent of an electoral mandate. That’s why you are here up to age 75. That doesn’t mean that we don’t listen to what public opinion is. I am like you. Each morning I look at the polls and I say, “Where are they? Are they going up or going down,” but we are not elected people. That’s not the determining factor if we are convinced on a principled basis that we are right to stand for what we conclude is a fair respect of the Charter of Rights and the Constitution of Canada. That’s what Senator Bellemare has in her Motion No. 89. She wants the first thing that we do when we study a bill to be to look at whether it is Charter compliant and Constitution compliant. If, after reasonable reflection and after hearing from all the witnesses that we can, we come to the conclusion that the bill doesn’t meet that threshold, we have the independence of status to maintain our position. We cannot compromise on the basis that, well, the majority is against it.
As Senator Ogilvie and Senator Mockler have said, we are dealing with the rights of people here, not in a theoretical manner. We are dealing with people that the Supreme Court has said have the right to medical assistance in dying in a certain number of conditions. The government decides to blankly exclude a large group of them without any evaluation of minimal impairment; that is, how to frame a better system. On the basis of all the interpretation, we know there is a fundamental risk of constitutional failure.
Honourable senators, I have stood up in this chamber on many occasions. Looking at our esteemed colleague Senator Runciman, I ask: How many amendments to the Criminal Code have we been asked to debate in the last 10 years?
An Hon. Senator: A lot.
Senator Joyal: Some of them raised very serious issues, as my colleague Senator Baker will know.
If we are of the opinion — sincerely and rationally — that there is probably a risk of excluding those people from their rights, as Senator Plett has said, as interpreted and directed by the court, then we have the choice to define a regime of regulation for them to exercise their rights. However, we cannot say, “You’re out; you’re suffering more than someone else and longer than someone else.”
The Hon. the Speaker: Senator Joyal, your time has expired. Are you asking for five more minutes?
Senator Joyal: Yes.
The Hon. the Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
Senator Joyal: In my opinion, this the fundamental point.
The second one I want to touch on is how can we reconcile our strongly held personal beliefs and our job as legislators? This was raised by Senator Stewart Olsen, Senator Boisvenu and other senators. Tonight, those are the two that I remember well because I was struck by their comments.
When we are sitting in this place, what is prevalent? Of course we have conviction, each one of us. Those convictions belong to different faiths. If we were basing our decision only on our faith, that faith would be one of the majorities that would impose its belief on the others.
Think it through twice. I don’t want to give any examples of a majority faith. I could use one that is in a minority position to show you how outrageous it could be, however. We’re not in a situation to impose any legislator to vote contrary to his or her strongly held belief. We put that in the Charter and we fight for this.
But, honourable senators, that’s not the way legislation is drafted. Legislation is drafted in the context of a society that has a separation between church and state. The state rules are defined by the way the Supreme Court interprets the Charter. Read paragraph 63 in the Carter decision and how the Supreme Court interpreted the right to life. The Supreme Court interpreted the right to life as including the right to death. If the Supreme Court would not have concluded that, all advance directives implemented in the provinces about not being artificially maintained in life would be struck down as unconstitutional. That’s the principle of lay society. In any church we belong to, in any faith we belong to, in any personal values we cherish, that could not violate our conscience to vote against it. That’s for sure.
We also must pay attention to the fundamental way that the Charter has been interpreted. If you want me to remind you of another excruciating debate, it was the debate over gay marriage. Honourable senators, for those of you who were not here 11 years ago, we debated this for two months. It ended July 28. Do you want to stay here up to July 28 to debate physician-assisted death or medical assistance in dying? We debated civil marriage for two months. Do you know how we debated it? The members on the committee were allowed to sit for a month. When the report was completed, the chamber was called back for third reading debate. That’s how it happened. There were senators on all sides of that debate according to their faith. They had a definition of marriage that was, as I said, totally contrary to the definition of marriage in that bill.
Honourable senators, those are the most important moments of our legislative life. They are the moments where we have to take into account the values that are enshrined in the Charter, which is our social covenant, and our personal belief to be truthful to what we consider is our intimate meaning of life. This is why it is difficult, but it is not difficult in a way that we cannot reconcile the two.
The important thing, as I said, is to maintain the freedom of anyone to exercise his or her decision in relation to his or her faith in the conduct of his or her life. This is the important aspect.
Honourable senators, there is another point I wanted to cover, but my time is up and I will certainly not abuse your patience. It is, essentially, what will happen next.
Honourable senators, we are here for the long term. That’s why you were appointed here up to 75 years of age. I have been in this place for 18 years. When I make a decision, I think about the perspective.
Second, you are independent. Nobody can oust you, so take the decision. Think of maintaining a decision that serves that principle. As I said earlier, we are a federal chamber, and our fundamental and primary role is to protect minorities.
In our heart and conscience, in the days to come we will be able to reflect upon those issues and continue our exchange.
Some Hon. Senators: Here, here.