Debates of the Senate
1st SESSION . 42nd PARLIAMENT . VOLUME 150 . NUMBER 42
Thursday, June 2, 2016
The Honourable GEORGE J. FUREY
C-14 (AN ACT TO AMEND THE CRIMINAL CODE AND TO MAKE RELATED AMENDMENTS TO OTHER ACTS (MEDICAL ASSISTANCE IN DYING)
Hon. David Tkachuk:
Honourable senators, I am going to read a section from the background of the Carter decision:
In Canada, aiding or abetting a person to commit suicide is a criminal offence . . .
It then names the sections under the Criminal Code.
This means that a person cannot seek a physician-assisted death. Twenty-one years ago, this Court upheld this blanket prohibition on assisted suicide by a slim majority: Rodriguez v. British Columbia . . . Sopinka J., writing for five justices, held that the prohibition did not violate . . . the Canadian Charter of Rights and Freedoms . . .
Despite the Court's decision in Rodriguez, the debate over physician-assisted dying continued.
As Senator Cowan commented, it was brought up in the House of Commons a number of times.
Between 1991 and 2010, the House of Commons and its committees debated no less than six private member's bills seeking to decriminalize assisted suicide. None was passed. While opponents to legalization emphasized the inadequacy of safeguards and the potential to devalue human life, a vocal minority spoke in favour of reform . . .
The judges also talk about the how the legislative landscape has changed, but in 2010, they mention that eight jurisdictions permitted some form of assisted dying: the Netherlands, Belgium, Luxembourg, Switzerland, Oregon, Washington, Montana and Colombia. That's the company that we're in.
Honourable senators, I am an unwilling participate in an edict of the Supreme Court, one that was able to change its mind, but I am a prisoner to their decision as a legislator and will work to make the legislation protective of the citizens who do not wish to be part of this business.
In speaking to the Special Joint Committee's report on physician-assisted dying, Senator Ogilvie urged ". . . every single Canadian to think extremely deeply about all these issues."
He felt compelled to say this even though the Special Joint Committee he sat on conducted 37 hours of hearings on the issues, called before it 61 witness and reviewed 100 other submissions.
He said this even though he was certain that the committee, in his words, gave the issue "the fullest and most thorough consideration possible, with all of the evidence available to it from around the world and within our own country."
Yet Senator Ogilvie felt compelled to urge every single Canadian to think extremely deeply about the issue.
There is a sense in that admonition of his that even Senator Ogilvie is not convinced that after all the study his committee put into it that theirs is or should be the final word on the subject.
The fact that four Conservative members of the committee attached a dissenting report to the main report and two NDP members attached a supplementary report is testimony to this.
Recently, at the Liberal Party convention in Winnipeg, former Prime Minister Paul Martin said in regard to Bill C-14 that he was still thinking about the issue. "We need to get it right," he said.
Liberal Bob Rae, whose gag reflex was demonstrably on display at that convention, said he couldn't swallow Bill C-14 either.
Grassroots Liberals at that same convention tried to introduce an emergency resolution to the agenda in Winnipeg to discuss Bill C-14 and it failed. The Justice Minister, who should know better, told them that the bill has to be passed by June 6. Otherwise, in her opinion, there will be no safeguards and no exemptions.
So the Liberals are divided over Bill C-14. The opposition is divided over Bill C-14. No matter how anyone feels about this legislation — whether they are in favour of it or against it — I can't imagine there is anyone on either side of the divide who doesn't feel conflicted about the issue.
I speak as an ordinary citizen for the rest of this speech. I am not a lawyer or a physician. I am a legislator.
This is a difficult decision for all of us and, to me, this is the most important vote that we're going to face. I want to describe to you why I'm against this bill in principle but, at the same time, compelled to have to deal with it and try and protect the people that I think need protection in the end.
It does seem odd to me that in the Parliament of Canada we would be talking about how to dispose of people who request death rather than choose life. We need to be wary of a logic that may lead down the path to someone asking for it simply because they cannot face the pain or discomfort of life. Treat it like a medical procedure and pay the druggist, the hospital and the doctor through our health plan, making us all a party to this act through our tax dollars.
My own experience with this is just like many of yours. My father had advanced dementia, and that's how he died at the age of 90. So the genes are good.
I took him for a ride in the car once along the Saskatchewan River. The full foliage of fall was out and the colours were spectacular. My dad went on and on talking about how beautiful it was and then I realized that he was seeing it for the first time.
Those are the kind of people that we will be putting into this particular situation. Dementia and even Alzheimer's is not the end of life. It's not the end of life.
When someone does commit suicide, some of the first things those close to that person ask themselves is, "What more could I have done? How did I not see this coming? If only I would have known, I could have done more to save them," not to help them on their way.
Suicide is something we normally do for ourselves: jump off a bridge, put a gun to our mouth or overdose on drugs. We do it for a variety of reasons: because we are depressed, because we lost our jobs, because we lost a love or just because we plain gave up on life.
That choice — a bad one as far as I'm concerned — the court has said we, the state, should now be involved in. We should pull the trigger. It will be less messy, socially acceptable and the government will pay for it.
I know there are robust safeguards, but can we be sure that at some point someone or a whole bunch of people aren't going to say that a little government-assisted suicide can save a lot of money on future health care?
It is our most basic instinct to preserve ourselves, to live, and to respect the rights of others to live. Even those convicted of the most horrific of crimes in Canada are no longer subject to capital punishment. The last execution in this country took place in 1962, and the death penalty was officially abolished in 1976.
This is not to equate the death penalty with medically assisted dying but to underscore how sacred life is to all of us and how complicated this issue of state-sanctioned assisted dying is.
We are now moving in the direction of the state sanctioning the death of our loved ones while we adamantly refuse to allow it to take the lives of even the most vicious and heartless of criminals. It is an odd juxtaposition, if nothing else.
The sanctity of life is a never-ending struggle. Throughout history there are those who have forgotten the struggles mankind has made to preserve this idea, an idea that is a forerunner to the very concept of human rights. Suicide has always been available to those who give up on life, but as civilized societies, we have always strived to discourage it, to never give up, to find cures, to conduct and fund medical research. Will there be less incentive for that now or in the near future? Will we move away from palliative care research and put the money elsewhere because now there is a newer and cheaper option?
Honourable senators, no one wants to watch their loved ones suffer, but our own discomfort must first lead us to search for better palliative care options for them and not for their death at the hands of the state.
I am heartened that in the preamble to the bill the government commits to working with the provinces, territories and civil society to facilitate access to palliative and end-of-life care. I'm concerned, however, that the language of the bill in clause 241.2 allows the patient to reject palliative care because he or she doesn't find it acceptable. I think the legislation needs to be stronger in encouraging palliative care.
Another concern I have is that this bill introduces a discussion in the preamble of a person's mental state as an excuse when the whole definition of mental illness is not being of sound mind. People escape criminal conviction in our courts because they are not of sound mind, because they were mentally ill or temporarily insane, yet we are suggesting that people who are mentally ill can soundly judge whether they should get the state's help in ending their life?
I also believe that this legislation puts our medical professionals in a very tricky position. Just how tricky can be encapsulated by the fact that the same bill that provides them a road map for assisting someone in dying, for doing the humane thing, also outlines prison terms for the same physicians as a safeguard against abuse.
I'm not saying that it's not necessary to include these punishments; I'm just saying that if I was a physician it would give me further pause about exactly what I'm getting into here, and it is another reason that we should be focusing on providing the best palliative care possible as a first resort.
I'm also concerned that the bill uses as criteria for inclusion patients whose death is reasonably foreseeable. That language is sloppy, lose and open to abuse. Attentive lawyers are probably salivating at the prospect of questioning at trial some hapless physician over how in a particular case he or she determined death was presumed to be reasonably foreseeable, or was not, as the case may be.
A greater emphasis on palliative care and reserving medically assisted dying to cases where death is imminent in six months or less is a more reasonable approach, and this bill should be amended to reflect that.
There should be stronger protection for those physicians, nurse practitioners, pharmacists and institutions like Catholic hospitals who for religious reasons or simply reasons of conscience want to opt out without the fear of penalty. The clarification at 241.2(9) goes some way toward this, but it doesn't mention institutions, and it doesn't go far enough, and individuals need to be assured not only that they are not compelled to participate but that they will not be subject to any form of penalty for not participating.
I as a citizen through my taxpayer dollar am now an unwilling party to this act, and the justices keep talking about it, first in Alberta, then in Ontario, giving conflicting advice to the poor legislators like us who are now being forced and rushed to make a decision to conform to an artificial deadline.
Sometimes I wonder about what the justices watch or what they read. They know a regular bill takes a year to get through Parliament, but for a bill of this magnitude, we should have had at least two years. It takes consultation with the public, consultation across the country; there should have been time for this. But no, they said one year and that's that.
There is no escaping the judges. And, hey, nothing personal, that was a wonderful speech made by a first-time senator. I tell you, it was terrific, so it's not personal, but there is no escaping them. They used to interpret the laws we made; now they are telling us how to make the laws according to what they decide in the courtroom. They excuse this by saying they are only interpreting the Charter. I wonder if those who wrote the Charter would have contemplated the extent to which our courts interpreted it. What was a crime last year will this year be considered our duty.