1st Session, 42nd Parliament,
Volume 150, Issue 42

Thursday, June 2, 2016
The Honourable George J. Furey, Speaker

Criminal Code

Bill to Amend—Second Reading—Debate Adjourned

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak on the second reading of Bill C-14. It is the hardest bill that I have ever worked on. I have stayed up many nights thinking about it and thinking about those who would be affected by this legislation. My entire life I have fought for the rights of the most vulnerable in our society. As a senator, I have fought to protect our constitution. Bill C-14 brings together these aspects.

This issue is deeply personal to many Canadians because we have all lived it in some way. We all know someone who has suffered intolerably. Maybe it is a co-worker or an acquaintance, or maybe a distant relative or loved one. We all hold the story of someone close to us.

Honourable senators, I would like to share with you the story of Elayne Shapray of Vancouver, British Columbia. She was in an advanced state of decline from secondary progressive multiple sclerosis. Multiple sclerosis is not terminal, but it causes intolerable suffering to many. It is a disease that affects more than 100,000 Canadians. Elayne’s condition caused her suffering for several years and left her completely incapacitated. Elayne was a long-time advocate of medical assistance in dying and offered her gripping affidavit after the B.C. Court of Appeal overturned the B.C. Supreme Court ruling in favour of Gloria Taylor and the BC Civil Liberties Association. In the words of Elayne’s husband, Howard: “Elayne had a peaceful and serene passing, surrounded by friends and family” on May 2.

Elayne was able to apply for an exemption from the Supreme Court’s declaration of invalidity and was afforded dignity in death. Under the restrictive criteria of Bill C-14, however, Elayne likely would not have been eligible for medical assistance in dying. Instead, she would have been forced to turn to self-starvation, something that is beyond cruel, to be eligible.

Honourable senators, I share Elayne’s story with you to highlight the importance of this issue and the care and deliberate consideration that it deserves. As senators, we are the absolute protectors of the rights outlined in our Constitution. As senators, we must uphold our responsibility in this matter.

Today, I would like to talk about how medical assistance in dying and the Supreme Court’s decision in Carter are related to the Charter. I would also like to outline how Bill C-14 restricts access to medical assistance in dying based on the parameters established in Carter and highlights the need to pass the right law.

Medical assistance in dying addresses the most fundamental of our constitutional rights as Canadians. Section 7 of the Charter says that each and every Canadian has the right to life, liberty and security of person. It says that we as Canadians are guaranteed the right not to be deprived of these basic rights except in accordance with the principles of fundamental justice.

The Supreme Court’s responsibility in Carter was to respect section 7 of the Charter with respect to sections 14 and 241(b) of the Criminal Code. Section 14 of the Criminal Code says:

No person is entitled to consent to have death inflicted on him, and such consent does not affect the criminal responsibility of any person by whom death may be inflicted on the person by whom consent is given.

Section 241(b) says:

Every one who. . . aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence. . . .

Honourable senators, Carter is not the first time that the Supreme Court has faced a challenge on the issue of medical assistance in dying. Before Kay Carter and Gloria Taylor, there was Sue Rodriguez. In 1993, Ms. Rodriguez, who suffered from ALS, lost her challenge at the Supreme Court in a 5-4 decision. Between 1993 and 2015, public attitudes changed and society evolved. Other jurisdictions began to legislate on medical assistance in dying and positive advocacy by the BC Civil Liberties Association and people like Gloria Taylor, Kay Carter and Elayne Shapray showed the public that medical assistance in dying could be dying with dignity. The public and health care personnel began seeing that medical assistance in dying could be an act of compassion. If we listen to Canadians on this issue, we can begin to understand that medical assistance in dying is intended to be compassionate.

The principles of fundamental justice that the Supreme Court once used to deny medical assistance in dying have evolved. As a result, so did the Supreme Court. On February 6, 2015, it set out the parameters for which medical assistance in dying should be allowed in Canada.

Bill C-14 is a legislative response to the delayed declaration of invalidity by the Supreme Court in its unanimous decision in Carter v. Canada. Bill C-14 falls short of the standards that the Supreme Court has set and that the public has set on this issue.

The Supreme Court was definitive in Carter. The Supreme Court was unanimous in Carter.

In its declaration of invalidity, the court says that sections 241(b) and 14 of the Criminal Code were no longer valid if they prohibited medical assistance in dying.

The court introduced parameters that said medical assistance in dying should be allowed

. . . for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Supreme Court went on to add, critically, that “`irremediable’ . . . does not require the patient to undertake treatments that are not acceptable to the individual.”

This is the language that the highest court in our country used in its landmark and unanimous decision. This, however, is not what was tabled.

Bill C-14 introduces some parameters and eligibility criteria that are restrictive. Yes, it says an individual must suffer from a grievous and irremediable condition, but it also says that an individual must have a “. . . serious and incurable illness, disease, or disability.” It goes on to say that the individual must be in “. . . an advanced state of irreversible decline in capability.” Third, the criterion says that the “. . . illness, disease, or disability or the state of decline that causes an individual enduring physical or psychological suffering must be intolerable to the individual.” Lastly, Bill C-14 says that an individual is only eligible if “. . . their natural death has become reasonably foreseeable.”

In Carter, there was no mention of incurable. In Carter, there was no euphemism for terminal illness such as “natural death has become reasonably foreseeable.” Yet, honourable senators, these words were included in Bill C-14. This language creates eligibility criteria that are restrictive and they do not meet the threshold set by the Supreme Court in Carter.

I will go on to explain why I believe that the restrictive eligibility criteria found in Bill C-14 should be replaced with the parameters established by the Supreme Court in Carter.

Bill C-14 involves both legal aspects and medical aspects. On the one side, there is the legal question. On the other side are the doctors, nurse practitioners and regulators who have to interpret Bill C-14 once it becomes law.

They are ones who must administer medical assistance in dying. Medical personnel from Montreal and Vancouver to Yukon and Thunder Bay need to be able to interpret what “grievous and irremediable” means and act accordingly. Incorrectly interpreting Bill C-14 is not an option. Yet, the medical reality will be filled with misinterpretation if we do not replace the restrictive criteria of Bill C-14 with the language we found in Carter.

Requiring that an individual suffers from an incurable illness, disease or disability is restrictive. We heard that, from the medical standpoint, the requirement that conditions be incurable suggests that patients must seek out and undergo all forms of treatment in order to cure the disease, even if these are unacceptable to the individual.

The Supreme Court of Canada clearly said that “irremediable” does not require the patient to undertake treatments that are not acceptable to the individual. Clearly, there is a disconnect between the Supreme Court’s decision and Bill C-14. Requiring that an individual’s natural death has become reasonably foreseeable is restrictive.

The Minister of Justice at our pre-study told us that requiring a person’s death to be reasonably foreseeable provides health care practitioners with flexibility to take into account all the person’s medical circumstances.

Honourable senators, the minister’s response at the pre-study stuck with me throughout the whole process of our pre-study. Yes, it is the lawyers who wrote this bill, but it is the medical personnel across Canada who will interpret this bill.

I asked Douglas Grant, President of the Federation of Medical Regulatory Authorities of Canada, how his organization will interpret “reasonable foreseeability.” He was fairly straightforward. He told me he doesn’t know. He then went on to say he worries that if this language remains in Bill C-14, there will be a variety of interpretations from province to province, health authority to health authority, and physician to physician.

This, honourable senators, is how many people in the health care sector feel about Bill C-14. The language of “reasonably foreseeable” does not appear in the medical lexicon. Health care personnel were looking for clarity. They were looking for guidelines on how to move forward. What they got instead was inconsistency and confusion.

Honourable senators, our most important responsibility moving forward is to ensure that Bill C-14 is the right bill for Canadians. We must ensure that it protects the rights and freedoms of all Canadians. It is essential for parliamentarians to give it the appropriate amount of time, effort and rigorous study that it deserves.

If Bill C-14 does not pass by June 6, there will be no federal law governing medical assistance in dying. This does not mean that there will be a massive void in terms of safeguards, as the government has suggested. The colleges of surgeons and physicians in all the provinces and the Government of Yukon have established considerable regulations that outline eligibility criteria and procedural safeguards. Nunavut and the Northwest Territories are currently working on regulations, and they will also have them in place by June 16.

Honourable senators, I have provided all of with you a map of Canada that sets out, right across the country, what regimes exist in each province. Yes, a federal law is ideal, but we must stay true to our role. We must give Bill C-14 the sober second thought it deserves. Expediency absolutely should not take precedence over accuracy.

An inadequate Bill C-14 means that someone like Louise Laplante of Quebec is not helped with medical assistance in dying. Louise passed away on March 13. One of the most emotional times during our pre-study was when her daughter, Léa Simard, showed tremendous courage in telling us about her mother. Léa offered emotional and gripping testimony of how the restrictive nature of Quebec’s assisted dying bill, which requires a terminal illness, made her mother, Louise, ineligible. Louise was not offered death with dignity. Instead, she was forced to starve herself and suffer cruelly and intolerably. Under Bill C-14, people like Louise would not be treated any differently. They would not be able to find peace and serenity, and they would not be eligible.

Honourable senators, we should not sacrifice our duty for expediency. As I conclude, I ask you to look forward.

Honourable senators, all of you here know that I’m a practising Muslim. From a young child, I was taught that death arrives when your time is over in this world, and you are not to hasten death by doing something like committing suicide or taking tablets. It is when the Creator is ready for you to die that he will accept you. All my life, until this bill came in front of us, I believed that I will live here as long as my journey expects me to live. I can make that choice. Nobody is asking me to do anything differently, and I personally will go with my religious beliefs.

Honourable senators, in the last few weeks since we have had this bill before us, I have had to look inside and say, “I am a practising Muslim, but my country has given me this greatest privilege of being a legislator.” As a legislator, I’m a leader. Sometimes people follow you; sometimes they have to be followed.

May I have five more minutes?

Hon. Senators: Agreed.

Senator Jaffer: Sometimes they follow you; sometimes we have to ask them to follow us. We certainly listen to people. To all the senators in this place, I say we are leaders. Whatever our personal beliefs — and I have opened up mine; for me, my personal belief is that I will stay on this earth as long as the Creator wants me. That’s my personal belief. But as a legislator, I believe I have to listen to Canadians, I have to look at the Charter, and I have to rise beyond my personal beliefs.

It has taken absolutely everything I have — I think it has aged me 10 years — to understand that, as a legislator, I have to protect the most vulnerable and make sure they die with dignity.

Thank you.