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Legislation to change medical assistance in dying system strikes the right balance: Senator Gold

“Bill C-7 strikes a reasonable balance between the rights of individuals to seek access to MAID and the safeguards necessary to protect the most vulnerable in society. It is sound in policy terms and on constitutional terms.”

Senator Marc Gold, the Government Representative in the Senate, spoke in support of Bill C-7, legislation that increases eligibility to medical assistance in dying while also reinforcing safeguards to access.

The bill comes in response to a Superior Court of Québec decision, which struck down as unconstitutional the requirement that death must be reasonably foreseeable in order to be eligible for medical assistance in dying.

Read Senator Gold’s second reading speech below.

“Honourable senators, I rise today to speak at second reading stage of Bill C-7, An Act to amend the Criminal Code (medical assistance in dying).

I would like to begin by thanking Senator Petitclerc for agreeing to sponsor this bill. Senator, your exemplary work, your openness to the opinions of others and your recognition of the differing points of view on a bill like this should serve as a model for the role of sponsor of a bill in the Red Chamber. Thank you, Senator Petitclerc.

Let me begin by stating the obvious: The subject of end-of-life decisions is a very personal one. It engages our deepest convictions — ethical, religious and philosophical — as well as our deepest fears, and many in this chamber have already come face to face with the experience as it relates to a loved one. As we age, we consider for ourselves what we would want should that time come for us to make such a decision. All that is to say that individuals have their own personal choices to make in exercising their constitutional rights.

Colleagues, as parliamentarians we also have choices to make as we review the legislative framework in Bill C-7 that is designed to give effect to these rights. My purpose today is to set out why I believe that Bill C-7 is worthy of your support.

Let me begin by summarizing the argument. Bill C-7 gives effect to the constitutional rights of the individuals who are suffering from grievous and irremediable medical conditions as recognized by the Supreme Court of Canada in the Carter decision in 2015, affirmed by the Senate in 2016 and reaffirmed by the Quebec Superior Court in Truchon in 2016.

Bill C-7 is informed by consultation with Canadians and affected groups. It is grounded in evidence and reflects the evolution of Canadian attitudes on this difficult issue, and most importantly, Bill C-7 strikes a reasonable and responsible balance between respecting the autonomy of individuals to exercise control over their bodies and their lives and providing appropriate safeguards to protect the most vulnerable when faced with intolerable suffering and the choices they confront. For these reasons, it is the view of the government that Bill C-7 is sound in both policy and in law.

Now, my remarks today will focus mainly on the constitutional issues raised by Bill C-7 and about which we heard a great deal during the pre-study by the Standing Senate Committee on Legal and Constitutional Affairs and, may I add, in the excellent speech of the bill’s critic, Senator Carignan. That I should focus on the constitutional issues is obvious. The central purpose of this bill is to give effect to the constitutional rights of individuals suffering from grievous and irremediable medical conditions to access MAID.

As we heard from witnesses during the committee’s pre-study, solving one constitutional problem — by removing the foreseeability of death as a limiting criterion for access to MAID — has given rise to several other concerns about the constitutionality of the bill. Some argue that Bill C-7 is too restrictive, as it now denies access to MAID to those whose sole underlying medical condition is mental illness. Others argue that Bill C-7 is too permissive and is dangerous to the rights of the most vulnerable in our society. Still others argue that the bill fails to protect the rights of those in the health care field whose personal, ethical or religious convictions simply preclude them from participating in a patient’s request for access to MAID.

Different though these concerns are, they do have one thing in common, and that is a concern that Bill C-7 may infringe on the Canadian Charter of Rights and Freedoms, and must be amended accordingly.

In my speech today, I will endeavour to explain why it’s the position of the government that Bill C-7 does not infringe on the Canadian Charter of Rights and Freedoms. But I do want to make it clear at the outset that I understand very well the position of those who take a different view, and I understand very well that there are very good arguments on both sides of many of these issues. I respect these arguments. They are worthy of serious consideration, and I will try to address them fairly.

I would like to make one last point. As you know, the government has submitted a request to the Quebec Superior Court seeking an extension of the suspension of the declaration of invalidity. Arguments will be heard later this week, and we do not know whether the extension will be granted.

As the Government Representative in the Senate, I had hoped that the Senate would be able to conclude its deliberations on Bill C-7 in time to meet the December 18 deadline, even though it received the bill only last week. As I have said in this chamber and in committee, I respect and support the Senate’s role in carrying out a comprehensive and appropriate review of this bill, I am pleased to have the opportunity to take part in the debate, and I am anxious to refer the bill to committee for study.

I would like to begin with a few general observations about our role as parliamentarians as we debate this bill at second reading. These observations have informed my thinking on constitutional rights since I started studying this topic, and I submit them for your consideration as we begin our deliberations.

Because we are dealing with constitutional rights, parliamentarians must be guided by the courts. When bills are studied at committee, senators are assisted by the testimony of witnesses. Ultimately, after all is said and done, we have the responsibility as parliamentarians to legislate, to make the difficult policy choices, to find the right balance between competing constitutional rights and values, to come to our own views on the constitutionality of a bill and to do so while respecting not only the Canadian Charter of Rights and Freedoms, but also the division of legislative powers in our Constitution and the Senate’s distinctive role as a complimentary legislative body to the elected House of Commons. Nowhere is this clearer and more important than in the subject matter with which we are seized of today.

In the course of our deliberations and debates, you will hear a great deal about court decisions interpreting sections 1, 7 and 15 of the Charter, as we have already properly heard yesterday. But it may be helpful to spend a few minutes on the court case that started Parliament on the road to a legislative framework for medical assistance in dying, a case whose teachings remain very relevant as we consider the bill before us.

The 2015 decision of the Supreme Court in Carter struck down the provisions of the Criminal Code prohibiting physician-assisted death for a competent adult person who clearly consents to the termination of life and has a grievous and irremediable medical condition, including an illness, disease or disability, causing enduring suffering that is intolerable to the individual in the circumstances of his or her condition. But as you know, the court in Carter suspended its declaration of invalidity for a period of 12 months.

Why did it not simply strike down the law immediately? Why did it not grant a free-standing constitutional exemption to the appellants, who were seeking access to physician-assisted death, indeed as a majority of the British Columbia Court of Appeal in Carter had suggested?

The court’s explanation for its suspension is relevant to our evaluation of Bill C-7. Here is what the court said at paragraph 124:

“The majority at the Court of Appeal suggested that this Court consider issuing a free-standing constitutional exemption, rather than a declaration of invalidity … In our view, this is not a proper case for constitutional exemption. … issuing such an exemption would create uncertainty, undermine the rule of law, and usurp Parliament’s role. Complex regulatory regimes are better created by Parliament than by the courts.”

Colleagues, the court in Carter recognized that it was not up to the courts to legislate the framework within which individuals could exercise their constitutional rights to access medical assistance in dying; that is Parliament’s responsibility. When Parliament legislates a complex regulatory scheme, such as it did in Bill C-14 and again here in Bill C-7, the Supreme Court in Carter stated that its policy choices were entitled to “a high degree of deference” from the court. This is just another way of underlining Parliament’s unique role and responsibility to legislate in this area.

The same understanding of Parliament’s responsibility underpins the Quebec Superior Court’s decision in Truchon, and the extensions that were granted on two occasions. As the court stated in Truchon at paragraph 743:

“… the suspension of a declaration of invalidity seems to have become another aspect of the dialogue doctrine, which allows the courts to acknowledge the legislature’s social policy role by granting it the opportunity to amend its legislation before it becomes of no force or effect.”

Now, before I turn to the specific constitutional issues that have been raised about Bill C-7, I want to address several other points that were raised in committee and here in the chamber. They are sometimes expressed as arguments, but I prefer to express them as questions. That way I can provide you with my answer without being or appearing to be argumentative, because these are serious questions, worthy of serious reflection.

First, why did the government choose not to appeal the decision in Truchon so that there would be fuller judicial consideration of the matter?

Second, why did the government not simply accept the decision in Truchon as it applies in Quebec and leave the law intact in all other provinces and territories?

Finally, related to the first question, why did the government not use its power under section 53 of the Supreme Court Act to refer the question of the constitutionality of Bill C-14 to the Supreme Court for a definitive ruling, rather than introduce a bill that will likely be the subject of constitutional litigation in any event?

So, to these questions. On the first point, both the Attorney General of Canada and the Attorney General of Quebec decided not to appeal the decision in Truchon. In part, it may very well be that they believe that the court in Truchon was correct, that the foreseeability of death provision in Bill C-14 did indeed infringe the Charter, as this chamber also believed when it passed its amendment to Bill C-14 in 2016.

Beyond that, I am of the view it was also because the Attorney General of Canada takes seriously the fundamental point in Carter; that it is the constitutional responsibility of Parliament to legislate in this area, to ensure that the right balance is struck between competing constitutional rights and social values.

Some, as you have heard, have called this an example of the dialogue theory between courts and legislatures, but for my part, I prefer to see this as Parliament playing its unique role, guided by the courts, in the democratic enterprise of ensuring that our laws respect our basic rights and freedoms.

This leads me to my second question. Why did the government not accept the ruling in Truchon but leave Bill C-14 intact in the rest of the country? The answer, honourable senators, is simple. To have done so would have been to create an asymmetry between the constitutional rights Canadians enjoy, depending on where they live. Of course, it will be said that is true in a federation such as Canada, examples of which may even be found in our Criminal Code. But the consequences of such asymmetry on an issue as consequential as access to medical assistance in dying was a decision that the government simply felt would be irresponsible and an abdication of its responsibilities. It would condemn Canadians in all provinces and territories to suffer without access to MAID, and to be forced, like Jean Truchon and Nicole Gladu, and too many others, to go to court to vindicate their constitutional rights.

Finally, some ask why the government did not simply refer the matter to the Supreme Court of Canada before introducing Bill C-7, a bill which they considered to be vulnerable to a Charter challenge. Well, let me offer two answers to this question, and one demurrer.

The first is a point that I’ve already made. Parliament has the responsibility to come to its own determination on the constitutionality of legislation, guided by the courts to be sure, but as Carter and many other cases teach us, with a constitutional authority — indeed responsibility — to balance the competing rights, freedoms and interests in pursuit of the public good.

The second answer, or the second reason, is compassion. Compassion for those Canadians across the country who are suffering intolerably from a grievous and irremediable medical condition, but would have to litigate to vindicate their constitutional rights to access medical assistance in dying. This is simply an unacceptable option, not only for this government, but also for the members of those opposition parties in the House that also supported this bill.

And finally, to my demurrer. Will there be litigation challenging Bill C-7? Of course. Would leaving Truchon to apply only in Quebec eliminate litigation? Of course not. Colleagues, welcome to “Charter-land.” For better and for worse, the courts will continue to be seized with this issue as individuals and groups seek to vindicate their constitutional rights, however they conceive them, and whatever their views may be on MAID. But this cannot be a reason for government and for Parliament to abdicate their responsibilities to legislate in good faith and in the best interests of Canadians. This is our democratic responsibility.

And Bill C-7 is the product of that. Now there is a further question that has been asked. It’s analogous to the question of a reference to the Supreme Court: Why did the government not do a complete parliamentary review, as required by Bill C-14, before proceeding in a stopgap, piecemeal way as some characterize Bill C-7 to be?

I will not repeat the reasons why the government believed it was important to respond to the Truchon decision to provide access to MAID. Nor will I elaborate on why the intervention of an election and a worldwide health crisis delayed the launch of the parliamentary review contemplated in Bill C-14. The Government of Canada remains committed to this review. Indeed, as Government Representative in the Senate I have proposed that the Senate begin a parliamentary review once Bill C-7 is passed. I have shared this proposal with the leaders of all groups and caucuses in this place, and I have asked them to discuss my proposal with their members. I hope you will support this, because it is through a parliamentary review — and as Senator Harder correctly pointed out, a review that the Senate is uniquely positioned to embark upon — that the issues, not only of mental illness, mature minors and advanced consent, but also of palliative care, can be and should be and will be fully canvassed.

But now we’re debating Bill C-7. So, it’s to that bill that I now turn.

The court, in Carter, recognized that Canadians have a constitutional right to medical assistance in dying, as I have said. But Bill C-14 limited that right to those whose death was reasonably foreseeable. Some supported that limitation because it would protect those suffering from physical disability and mental disorders from the risk that they may make choices that were influenced by the difficult social circumstances they were in, or that their decisions would not, in some sense, be fully free and informed.

But the court, in Truchon, as did the Senate in 2016, rejected this argument and reaffirmed the rights of all as recognized, defined and affirmed in Carter. So, Bill C-7 responds to Truchon by affirming those rights for those suffering from grievous and irremediable medical conditions, but it does limit access to MAID — denies access to MAID, to be clear — where the sole underlying condition is a mental illness.

Some argue that the removal of the foreseeability of death limitation discriminates against the class of persons with disabilities — singles them out, and therefore infringes the Canadian Charter of Rights and Freedoms. Others argue that it is the exclusion of mental illness from access to MAID that infringes the Charter. Both of these arguments are important and worthy of our serious consideration.

I’m going to begin with the second question, that of mental illness, because in my considered opinion it raises more difficult constitutional questions. Moreover, it allows me to provide a fuller analysis of the Charter issues that apply to the case of disability more broadly.

Bill C-7 excludes all individuals from access to MAID where a mental illness is the sole underlying medical condition. That’s a change from Bill C-14. Under Bill C-14, access to MAID was available in principle to persons suffering intolerably from grievous and irremediable medical conditions, including persons with mental disorders, but the requirement that death be reasonably foreseeable had the practical effect of limiting access to those for whom the sole underlying condition was a mental disorder. But under Bill C-7, the de facto limitation has become a legal exclusion. This clearly engages the Canadian Charter of Rights, notably section 7 and the equality of rights in section 15. Colleagues, engaging the Charter is not the same thing as infringing the Charter, as I will endeavour to explain.

If there is one issue upon which all would agree, and this emerged clearly in the committee’s pre-study, the issue of permitting MAID for persons whose sole underlying medical condition is a mental disorder is a complex and difficult one.

This practice is only authorized in a few jurisdictions in the world. The results have been mixed, and opinion is strongly divided.

Furthermore, the constitutional considerations associated with MAID for individuals suffering solely from mental illness have not been dealt with conclusively by the courts and were excluded by the Supreme Court in Carter. That is why it is important to have this debate. We have the opportunity as senators to participate in this constitutional conversation with the courts, the government and our counterparts in the House of Commons.

Let me begin with the equality rights provisions. Our understanding of the equality rights provisions of section 15 of the Charter have evolved over the past 35 years and are still evolving. It is now clear that section 15 is not limited to what is termed “formal equality,” that is, the Aristotelian notion of treating like cases alike, but protects what the courts have come to call “substantive equality.” According to our courts, equality guarantees under section 15 seek to prevent and remedy discrimination against groups subject to social, political and legal disadvantage in Canadian society.

The courts’ analysis under section 15 proceeds in two steps. Step one asks whether the law creates a distinction on the basis of an enumerated or analogous ground. Step two asks whether the distinction is discriminatory, or put another way — and I’m quoting — whether it:

“imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating their disadvantage.”

The courts have been at pains to remind us that section 15, and the analysis under section 15, is contextual, and must take into account the concrete impacts of the law on members of protected groups “in the context of their actual circumstances, including historical and present-day social, political, and legal disadvantage.”

The Supreme Court of Canada has recently issued two judgments consolidating and clarifying the legal framework to be applied under section 15 — a framework that we need to take seriously and under consideration as we deliberate on this matter.

In the Fraser decision, the court provided two important clarifications of the second step of the section 15 test. First, although the presence of social prejudices and stereotyping can help show that a law has negative effects on a particular group, these are not essential parts of the analysis nor factors that a claimant must prove.

Second, the question of whether a law perpetuates a disadvantage of a protected group is relevant to a state objective — whatever that is in any case — is properly considered not in section 15 but as part of the section 1 analysis. At this stage of the analysis, in section 15, the question is simply whether the law perpetuates a disadvantage.

The second important case, one directly relevant to the question before us, is Attorney General of Ontario v. G. Senator Carignan referred to it yesterday. This case concerned the provisions of an Ontario statute known as Christopher’s Law requiring those who are either convicted or found not criminally responsible for a sexual offence because of a mental disorder, NCRMD, to physically report to a police station for their personal information to be added to the province’s sex offender registry. Registrants must continue to report in person at least once a year and also if certain information changes. Registrants must comply for 10 years, if the maximum sentence for the sexual offence is 10 years or less, or for life if the maximum sentence is greater than 10 years or if they committed more than one sexual offence.

But here lies the rub. Under the law, there is an opportunity, based upon individualized assessment for those found guilty of sexual offences, to be removed or exempted from the registry or relieved of their reporting requirements. By contrast, no one found not criminally responsible on account of a mental disorder can ever be removed from the registry or exempted from reporting, even if they receive an absolute discharge from a review board.

The Supreme Court struck down this provision of the law on grounds that it was discriminatory. Here is what the court said in relation to the meaning of discrimination under section 15:

“The second step [of the analysis] asks whether the challenged law imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including historical disadvantage. By denying those found NCRMD opportunities for exemption, removal, or relief from the sex offender registry, Christopher’s Law effectively presumes they are inherently and permanently dangerous. It considers NCRMD individuals a perpetual threat to the public. Christopher’s Law imposes a burden on people found NCRMD in a manner that violates s. 15(1) in two respects: the law itself invokes prejudicial and stereotypical views about persons with mental illnesses; and the law puts those found NCRMD in a worse position than those found guilty. Both effects perpetuate the historical and enduring disadvantage experienced by persons with mental illnesses. The distinctions drawn by Christopher’s Law are thus discriminatory.”

Now, returning to Bill C-7, there is no dispute that the exclusion of eligibility for MAID where the sole underlying condition is a mental illness amounts to a distinction on the basis of mental disability. Bill C-7 clearly satisfies the first step of the section 15 analysis. But is it discriminatory under the second part of the section 15 analysis in the terms that the Supreme Court has provided us for our guidance?

The government’s legal position is that this distinction is not discriminatory. But this is not to deny that persons with mental disorders have not, and do not still, suffer disadvantages caused by stereotyping and social exclusion. Yes, there is stigma that has attached and still attaches to those who suffer from mental disorders. Sometimes they are viewed as having lives not worth living, a burden to society, better shut away out of view or worse. Other times they are deemed incapable of making informed decisions for themselves.

Nevertheless, colleagues, denying access to MAID for people whose sole underlying medical condition is a mental disorder is not at all analogous to the discrimination in Christopher’s Law that was struck down by the Supreme Court. In the case of Christopher’s Law, the assumption was that persons found not criminally responsible due to mental disorder were a perpetual danger; they could never change. This flies in the face of medical knowledge. It perpetuates the worst stereotypes about mental disorder and contributes to the ongoing stigmatization suffered by those with mental disorders.

Is this the hypothesis underlying Bill C-7? No. Bill C-7 is based upon the assumption that persons suffering from mental disorders can, in fact, improve; that their suffering, though intolerable in the present, may be alleviated in the future through treatment; and that their medical condition, though grievous, may not in fact be irremediable. Does this perpetuate a stereotype about mental disorder? Does this stigmatize people who suffer from mental disorders?

Colleagues, to pose the question, I think, is to answer it.

Honourable senators, Bill C-7 seeks to protect persons with mental disorders, given the lack of clear criteria for determining the trajectory of many such disorders and the lack of consensus amongst the health care community on the standards to be applied in such cases. It is the position of the government that this exclusion does not reinforce, perpetuate or exacerbate disadvantage on the basis of mental disability and, therefore, does not infringe the equality rights guaranteed in section 15.

However, as any student of the Charter will know, arguments about rights — and especially equality rights — are inherently controversial. Predicting how a court might rule is a very risky business.

Part of this actually has to do with the very nature of equality rights and the competing conceptions, understandings and interpretations of the equality rights that are co-existing within the very text of section 15.

As one scholar wrote that equality is:

“… one of those political symbols . . . into which men have poured the deepest urgings of their hearts. Every strongly held theory or conception of equality is at once a psychology, an ethic, a theory of social relations, and a vision of the good society.”

As another scholar observed:

“Equality is the great political issue of our time. …  The demand for Equality obsesses all our political thought. We’re not sure what it is…but we are sure that whatever it is, we want it.”

But part of it also has to do with the uncertainty surrounding how courts will rule in any given case, especially since the jurisprudence interpreting section 15 is still in a state of flux. It’s therefore possible that a court would conclude, notwithstanding what I’ve presented to you, that the exclusion of mental illness in Bill C-7 does perpetuate disadvantage, thereby infringing section 15, and it must be justified as a reasonable limit to that right under section 1 of the Charter.

As you know, the rights guaranteed by the Charter are not absolute, but are subject to such reasonable limits as can be demonstrably justified in a free and democratic society. Bill C-7 clearly satisfies several of the elements of the criteria set out in section 1, which were established by the Supreme Court in the reasons for the main ruling. The exclusion of eligibility for MAID where the sole underlying condition is mental illness serves to protect vulnerable persons from being induced to end their lives. The Carter ruling clearly states that this objective, which was also the basis for the previous law, is pressing and substantial. That is the first part of the section 1 analysis. With regard to the other tests, there is no doubt that there is a rational connection between the exclusion and the objective. After all, the court wrote in Carter that it is clearly rational to conclude that prohibiting MAID will protect the vulnerable from being induced to commit suicide at a time of weakness. For the same reasons, the introduction of MAID for individuals suffering solely from mental illness certainly satisfies the rational connection requirement.

The much harder question, colleagues, surrounds the requirement under section 1 that the impugned provision impairs rights to the least degree possible, the so-called minimum impairment test. Otherwise put, the question of the minimum impairment test is whether the law is reasonably — not only rationally, but reasonably — tailored to its objectives.

In approaching this question, our courts have recognized that in cases involving complex social issues, legislatures may “may be better positioned than the courts to choose among a range of alternatives.” The court recognized in Carter that the issue of physician-assisted dying involves complex issues of social policy and several competing rights, interests and values, and it rightly suggested that Parliament’s response would be owed a high degree of deference. Moreover, in cases involving complex human behaviour, the court has accepted that Parliament is entitled to take a precautionary approach even when the harms that it is trying to address are difficult to prove.

So the question boils down to this: Did Parliament have a reasonable basis for concluding that the perceived harms exist and that the law does not limit rights more than necessary to achieve that legislative objective?

The government’s position is that continuing to prohibit MAID for persons suffering solely from mental disorder is necessary in light of the currently available evidence to achieve the objective of protecting vulnerable persons from being induced to end their lives.

Following the legalization of MAID, the Council of Canadian Academies was asked to conduct independent, evidence-based reviews on three potential areas of expansion for Canada’s MAID regime, including mental illness as the sole underlying medical condition. The CCA report on mental illness reflects the deeply divided opinion and evidence in this area, and this was also evident during the pre-study conducted by our Senate Committee on Legal and Constitutional Affairs.

The CCA report includes evidence to support the view that relaxing the prohibition on MAID in these circumstances would pose untenable risks, compromising the objective of protecting vulnerable persons. This evidence to which I referred includes a number of different categories, of which I will mention just three.

The first relates to the challenges associated with screening for decision-making capacity. While most people with mental illness have the capacity to make treatment decisions, some mental disorders can impair decision making and increase the risk of incapacity. There is evidence that screening for decision-making capacity is particularly difficult and subject to a high degree of error in relation to persons who suffer from a mental disorder serious enough to ground a request for MAID. Hopelessness, feelings of worthlessness and the wish to die are often symptoms of some mental disorders. Accordingly, it can be difficult — though, of course, not impossible — for even experienced practitioners to distinguish between a wish to die that is autonomous and well considered and one that is an expression or symptom of the person’s very illness.

The second category of evidence relates to the nature and trajectory of mental illness. As explained in their chapter on diagnosis, prognosis and treatment effectiveness, there is evidence that mental illness is generally less predictable than physical illness in terms of the course that the illness will take over time. Many people with a poor prognosis will improve — at least in terms of their suffering and their desire to die. Although some will not improve, there is no reliable way of identifying these people in advance.

The third category of evidence relates to international evidence from the few jurisdictions that permit MAID for those whose sole medical condition is a mental illness — Belgium, the Netherlands and Luxembourg. Recent practice in these countries has raised concerns, both in relation to the increasing numbers of these cases and in relation to the wide range of mental illnesses in respect of which MAID has, in fact, been provided.

To be sure, we must be mindful to pay attention to the differences between the health care systems in other countries and in Canada before automatically incorporating their experiences into ours; however, we should never turn a blind eye to the lessons that other jurisdictions may have for us, especially as we aspire to make difficult policy decisions on the basis of the best evidence available. That is what we expect our government and Parliament to do.

For all these reasons, and based on the evidence available at this time, it is not clear that the inherent risks associated with this practice can be adequately mitigated by any feasible system of safeguards. Therefore, it is the position of the government that the exclusion in Bill C-7 satisfies the minimal impairment test under section 1 of the Charter.

That same evidence supports the government’s conclusion that prohibiting MAID for individuals suffering solely from mental disorders addresses the final balancing requirement, or the third step of the criteria established in the Supreme Court’s decision in Oakes with respect to balancing the benefits of a particular act and the harm it causes.

It is also important to remember that, in cases like this one that involve inconclusive evidence and complex social issues, the courts tend to take a flexible approach to balancing the benefits of the act. As it stands, the benefits of the act include protecting vulnerable people who face unique risks, in relation to MAID, of having their lives cut short even though there is hope for recovery.

In assessing the harms associated with the prohibition, it is important to be clear that ineligibility for MAID is not based upon and does not perpetuate the assumption that persons with mental disorders are incapable of making consequential decisions. This is evident in the fact that mental disorder is not a disqualifying factor for individuals who are otherwise eligible; rather, the prohibition is based on evidence suggesting that the assessment of capacity in these situations is fraught with difficulty and insufficiently reliable.

The prohibition is also not based upon the notion that mental disorders do not cause profound or grievous suffering or that they are less worthy of concern than physical illnesses. The prohibition is based on the unique risks posed by access to MAID in situations where the only underlying condition is a mental disorder. Although eligibility for MAID can cause distress for some individuals with mental disorders, the government believes that, in this context, the benefits of the prohibition — meaning the protection it provides — outweigh the harms associated with it.

Honourable colleagues, the guarantee of substantive equality under the Charter is based upon the idea, in the words of the Supreme Court, that individuals should be treated “as human beings equally deserving of concern, respect and consideration.”

The exclusion introduced in Bill C-7 is not because persons suffering from mental disorders are human beings any less deserving of concern, respect and consideration; quite the opposite. The exclusion is based primarily upon the apparent lack of criteria for determining when a patient’s mental disorder, notwithstanding their suffering, is, in fact, irremediable — one of the conditions set out in Carter — to ground our constitutional right to MAID. This is reinforced by the clear lack of consensus amongst medical practitioners and their professional associations as to whether mental illness as the sole underlying condition should be included or not in the legal framework of medical assistance in dying.

For all these reasons, the government’s position is that prohibiting MAID for a person suffering solely from mental illness is consistent with the equality rights provisions in the Canadian Charter of Rights and Freedoms. However, this does not end the analysis, because the issue could also be approached through the lens of section 7 of the Charter, which protects the rights of life, liberty and security of the person and prohibits government interference with these rights, unless done in accordance with the principles of fundamental justice.

Now, there is no doubt that the exclusion of mental illness in Bill C-7 engages the interests protected by section 7 of the Charter. In Carter, the court explained that a competent adult’s “… response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy.” Now, although the issue of MAID for persons suffering solely from a mental disorder was not before the court in Carter, this aspect of Bill C-7 clearly appears to engage the right to liberty and security of the person.

However, it is the position of the government for all the reasons that I set out in my discussion of the equality rights provisions in section 1 that the impact on liberty or security of the person is, in fact, consistent with the principles of fundamental justice. According to the Supreme Court, the principles of fundamental justice embody three important constitutional values: that the law not be arbitrary, overbroad or disproportionate. And in here, colleagues, you may detect a connection with the values of rationality, reasonableness and proportionality that I discussed under section 1 of the Charter.

To put the matter simply, the prohibition in Bill C-7 responds to the unique risks of MAID in this context. Its effects are both related and proportionate to the important objective of protecting vulnerable individuals, and as such, it is neither arbitrary nor overbroad or grossly disproportionate. But as I said before, it is possible that a court would disagree, such that a justification under section 1 would be required. And although it is often stated that it would be difficult to justify a law under section 1 that has been determined to be inconsistent with the principles of fundamental justice, since there appears to be considerable overlap between the core principles underlying the tests in both sections, it is nonetheless important to note that there are recent developments in the jurisprudence that have significantly expanded the scope of section 1 in section 7 cases. So, all of the considerations previously outlined would apply equally to a justification of any potential limit on section 7 rights in this context.

But before I conclude this part of my remarks — and, yes, alas, there is still more to come — and at the risk of repeating myself, I want to underline for this chamber that the government is aware that there are strong constitutional opinions to the contrary, and that the arguments against this aspect of Bill C-7 are worthy of serious consideration and debate. I certainly have wrestled with them, as should we all. But the central point I want to make in this regard is that the government has carefully considered the scope of the Carter decision as well as recent court decisions interpreting sections 7 and 15 of the Charter. It has carefully considered the views expressed by the Council of Canadian Academies, and it was in light of all of this that the government reached the conclusion, at this stage in the evolution of both the law and medical opinion, that the exclusion of mental illness when it is the sole underlying medical condition was justified as a matter of policy and is consistent with the Canadian Charter of Rights and Freedoms.

Honourable senators, the issue of MAID for persons suffering solely from mental illness is not the only issue that has raised constitutional questions. This comes as no surprise and reflects the range of potential effects that were identified in the Charter statement for Bill C-7. The first issue is whether the removal of the requirement that a person’s natural death be reasonably foreseeable increases the risk and therefore engages the Charter rights of persons with disabilities. As explained in the Charter statement on Bill C-7, the government recognizes that expanding eligibility for MAID involves broadening the exceptions to criminal prohibitions on the intentional taking of life. If sufficient safeguards are not included to protect vulnerable persons against abuse or error, it could affect the right to life and security of the person guaranteed by section 7 of the Charter, and because the broadened exceptions would apply where the person seeking MAID has a serious and incurable illness, disease or disability, the bill also potentially engages the section 15 right to equal protection of the law of persons with disabilities.

Now, as set out in the Charter statement, several considerations support the consistency of this aspect of the bill with both sections 7 and 15 of the Charter. Crucially, individuals would continue to be eligible for MAID only if they have made a voluntary request that was not the result of external pressure. They would also still have to give informed consent after having been apprised of means available to relieve their suffering. Importantly, providing MAID where these requirements have not all been met, either with respect to the eligibility criteria or procedural safeguards, would be a criminal offence.

Additional considerations support the consistency of this bill with section 15 of the Charter. Like the current law, and as set out in the preamble, Bill C-7 would continue to affirm the equal and inherent value of every person’s life. Eligibility for MAID under Bill C-7 would not be based on negative stereotypes equating disability with loss of dignity or quality of life, but on respect for the autonomy of all persons with a serious incurable illness, disease or disability to choose MAID as a response to intolerable suffering that cannot be alleviated by means that are acceptable to them.

Persons with disabilities have fought for, gained and deserve the rights of full inclusion, including the right of choice. Yet, at the same time, they often don’t have, or are not perceived to have, the same autonomy as others. Colleagues, the same discussion was had at great length during the joint parliamentary study leading up to Bill C-14.

Bill C-7 eliminates the barriers between those already eligible for MAID while providing safeguards for those wishing to access MAID due to irremediable and prolonged suffering where death is not imminently foreseeable. It is the view of the government, as it is of the courts, and, indeed, of the Senate in 2016, that individuals supported by their families and the medical professionals caring for them should be able to determine what is best for them in their own circumstances.

The decision to access MAID is not taken lightly by the person making the request or by those who love or care for them. To suggest otherwise is to ignore all the thought and prayer that went into making the decision, not to mention the suffering that led to it.

The provisions of Bill C-7 are permissive and not automatic. They offer a legal choice to those who are suffering intolerably as a result of a grievous and irremediable medical condition. That is the right granted to every competent adult. However, that right to choose must be exercised within the context of a legislative framework that ensures the implementation of appropriate safeguards for those who are seeking access to MAID because of their suffering. The law must guarantee that they make an informed decision and that the situation is assessed professionally and appropriately, hence the need for additional safeguards in the bill under such circumstances.

Bill C-7 includes these sorts of guarantees for those who request MAID even though their death is not reasonably foreseeable or imminent. These guarantees are designed to support the individual’s informed choice and were developed in consultation with people with disabilities and representatives of that group because, as Senator Petitclerc pointed out, there is a lot of diversity among the millions of Canadians who are living with a disability, whether it be physically, mentally or sociologically, and they also have very diverse opinions on medical assistance in dying for themselves and for those they represent.

As Senator Petitclerc outlined both the process and the safeguards in her speech, I shall not repeat them. That these safeguards are deemed too strong for some and inadequate for others is to be expected given the importance and sensitivity of these issues. For example, Senator Carignan raised concerns about the 90-day assessment period for those seeking MAID but whose death is not reasonably foreseeable, arguing that this infringes on the Charter. But we have also heard that this period — a minimum period, it must be underlined — is too short to provide proper protection for persons seeking MAID. This only reinforces the importance for us as parliamentarians to be mindful of the complexity of these issues as we deliberate on this aspect of the bill.

Let me turn to some of the arguments that we’ve heard on this particular issue more broadly. Some advocates for the communities of disabled persons and some members of the opposition in the other place argue that the “foreseeability of death” criterion should be maintained to protect the vulnerable. Indeed, there is a vigorous letter-writing campaign under way to this effect.

The government strongly disagrees. As the court in Carter stated in paragraph 66:

“An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy. The law allows people in this situation to request palliative sedation, refuse artificial nutrition and hydration, or request the removal of life-sustaining medical equipment, but denies them the right to request a physician’s assistance in dying. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty.”

To maintain the foreseeability of death criterion limitation — one should state more strictly — would be to deny a person with a disability their constitutional right to life, liberty and security of the person. It would show a lack of respect for their dignity and autonomy and violate their constitutional rights to be treated as individuals deserving of equal respect and consideration.

Concerns have also been expressed that the power dynamic between physician and patient exposes the most vulnerable to pressure that could compromise their capacity to make a free and informed decision on MAID.

Without denying this aspect of the physician-patient relationship, permit me to say that this argument fails to recognize the devotion, professionalism and good faith of the vast majority of medical professionals who are called upon to assist and assess someone who is seeking access to MAID. I am tempted to go even further and suggest that it implicitly dishonours them and the professional and ethical standards by which they are bound. The government also agrees with the court in Truchon that physicians are able to properly assess a patient’s request for MAID to ensure that it is well informed and free of coercion.

It is not only the concerns about the impact of the potential power imbalance between patient and physician that has raised concerns. Some of the concerns I’m about to express are focused on Bill C-7 itself, while others are broader in scope.

It is argued that expanding access to MAID is dangerous, given the inequalities that exist in our country. Concerns were expressed, and will continue to be expressed, about the impact of poverty on the choices people may feel compelled to make, on the impact of unequal access to health care generally, whether in more rural and remote areas, on reserves or within provinces themselves, and on the relative lack of palliative care alternatives for those who are suffering intolerably. All these factors are set to compromise the choices of individuals who are suffering.

These inescapable truths cut in several, not always consistent, directions. For some, this is an argument for expanding social services and palliative care resources so that individuals have more options. For others, this is a reason to maintain the “foreseeability of death” limitation to minimize the impact of the social and regional inequalities on the choices available. These are real, legitimate and important concerns.

More resources are needed for palliative care. Fortunately, both the federal government and provincial governments are responding to their needs through increased funding. Furthermore, as the recently enacted Ontario Compassionate Care Act illustrates — to which Senator Harder made reference yesterday — we are also seeing a movement to create legislative frameworks to support increased palliative care in the provinces and territories.

More and better training for medical practitioners is urgently needed, whether in our medical or nursing schools across the country or in the development of a training and certification program for doctors specializing in MAID through the professional associations at the provincial and national levels. Efforts must continue to address the social inequalities that clearly affect the choices Canadians make in this, as in so many areas of their lives.

Colleagues, these concerns cannot be addressed through the Criminal Code, much less through Bill C-7, and nor should they be. Many of these fall clearly outside Parliament’s constitutional authority and are within exclusive provincial jurisdiction. Others lie in the hands of the professional associations that oversee the work of our medical professions. Those, too, fall within provincial jurisdiction.

Bill C-7 strikes a reasonable balance between the rights of individuals to seek access to MAID and the safeguards necessary to protect the most vulnerable in society. It is sound in policy terms and — as I have endeavoured to explain in great length and with your considerable indulgence, for which I thank you — on constitutional terms.

Honourable senators, there remain other issues worthy of consideration that I wish to outline for your consideration.

One of the issues that came up during the debate on MAID is advance directives. This issue will be looked at during the parliamentary review pursuant to Bill C-14. The Council of Canadian Academies studied advance directives in its own independent review, also pursuant to Bill C-14.

Bill C-7 is a step forward because it enables people whose natural death is reasonably foreseeable to receive MAID on the basis of a prior arrangement giving consent under certain conditions. Bill C-7 would also allow an individual who chooses to self-administer MAID to make a back-up plan should self-administration not result in death within a specified period but cause a loss of capacity.

The question is whether this approach, which would prohibit most advance directives for medical assistance in dying, complies with the Charter of Rights and Freedoms. The government’s position is that it does, and I’m prepared to discuss that further if senators have questions about it.

Finally, it has been argued that Bill C-7 should make it clear that medical practitioners who object on grounds of conscience should not have to participate in a patient’s request for access to MAID, including, some argue, not being required to refer that patient to a medical practitioner willing to provide assistance and assessment.

Regarding the first point, the position of the government is that this is not necessary. The Canadian Charter of Rights and Freedoms guarantees freedom of conscience and religion. The preamble to Bill C-14 clearly states that nothing in the act affects the guarantee of those freedoms. No doctor or nurse is forced to administer MAID.

Let me make two points regarding the question of referrals. First, this is a matter properly within the scope of provincial organizations to which health professionals belong, which are within the exclusive jurisdiction of the provinces.

Second, colleagues, we cannot forget that access to medical assistance in dying is a constitutional right. As parliamentarians, we should be careful before we contemplate legislating to limit a person’s ability to exercise their constitutional rights, especially where there are serious questions about the scope of Parliament’s legislative jurisdiction in this area.

I began my remarks by referring to the pre-study and the decision of the Supreme Court in Carter, and so I will conclude. That was a pause for what I thought would be a sigh of exasperated relief. I will conclude with the same.

As you know, the committee did not do a pre-study on the bill, because it was still being debated in the other place. It did an extensive pre-study on the subject matter of the bill. As such, it was inevitable that witnesses and the study and questions of senators would range over a broad set of issues concerning medical assistance in dying, including issues explicitly excluded from Bill C-14 and, indeed, Bill C-7. In this respect, the following comments by the Supreme Court in Carter could apply with equal force to much of what we heard in committee.

Speaking of the evolving public debate, the court said:

“The debate in the public arena reflects the ongoing debate in the legislative sphere. Some medical practitioners see legal change as a natural extension of the principle of patient autonomy, while others fear derogation from the principles of medical ethics. Some people with disabilities oppose the legalization of assisted dying, arguing that it implicitly devalues their lives and renders them vulnerable to unwanted assistance in dying. … Other people with disabilities take the opposite view, arguing that a regime which permits control over the manner of one’s death respects, rather than threatens, their autonomy and dignity, and that the legalization of physician-assisted suicide will protect them by establishing stronger safeguards and oversight for end-of-life medical care.”

Colleagues, I am tempted to say that the more things change, the more they stay the same. But things have changed. Canadians’ attitudes towards MAID have changed, and so too must the law change.

Colleagues, we have embarked upon a very important debate, and the Senate has a critical role to play. As a senator and the Government Representative in the Senate, I am confident that we will do our work responsibly and honourably as we play our part in this collective exercise of democratic law making.

Thank you very much for your attention.”

Legislation to change medical assistance in dying system strikes the right balance: Senator Gold

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