Murray Rankin speaks on medical assistance in dying

Final speech on C-14 at Third Reading in the House of Commons

 

Mr. Speaker, I’m honoured to rise to address Bill C-14.

Four months ago, I walked into the first meeting of a special House-and-Senate committee created to advise this government on its response to the Supreme Court in Carter.

We worked long hours, and late nights, respectfully and constructively, with all parties, and both chambers.  

We heard from witnesses and experts, from across Canada, and from all walks of life.

As we worked, I know that many of us thought of who had struggled and suffered for the right to control their own lives at the end. People like Sue Rodriguez who died in 1994 after losing her battle with ALS and her battle in the Supreme Court of Canada. People like Kay and Lee Carter, Hollis Johnson and William Shoichet, and Gloria Taylor—who fought valiantly and won in the Court last year.  

The work of the special committee proved that a thoughtful and respectful debate was possible. But more than it, it proved that a well-crafted bill could win the support of all parties and members of both houses. I say that because a broad majority of us, from all parties and both chambers, agreed on 21 recommendations to this government.  

So I never imagined then that I would be rising now to oppose this bill.

This government bill ignores or rejects, the majority of the recommendations of the joint House-and-Senate committee. I am proud of those recommendations. It’s true that many would have required great political courage; but all faithfully followed the evidence we received from the majority of experts who appeared before us.

But not only does this bill reject those recommendations...

This bill defies the Supreme Court ruling, falls short its requirements and therefore violates the Charter rights of suffering Canadians. 

That is the opinion of the Canadian Bar Association, the Quebec Bar Association, and others.

That was the ruling of the Alberta Court of Appeals.

And just days ago a court in Ontario echoed the Alberta decision. Justice Paul Perrell of the Ontario Superior Court, in a decision that has just come to light, ruled that the Supreme Court’s basis for an assiste3d death “is the threat the medical condition poses to a person’s life and its interference with the quality of that person’s life. There is no requirement that a medical condition be terminal or life-threatening.”

And despite this, times and again this government limits debate and tries to strong arm a flawed bill through this chamber.

To be sure, this is a complex issue. And it is a sensitive one. But it is not a partisan issue. The Supreme Court has given us as parliamentarians an opportunity, not an ultimatum, to craft legislation that is consistent with the Carter decision.

As is so often the case in this debate, we ought to just look at exactly what the Court said. So here’s what they said at paragraph 126:

“It is for Parliament and the provincial legislatures to respond should they so choose by enacting legislation consistent with the constitutional parameters set out in these reasons.”

So each of us as parliamentarians facing a free vote has a simple question to answer -- Does this bill obey the constitutional parameters set out by our Supreme Court?

That is now the only question.

If it does not—if it fails that test—then this House is being asked to knowingly infringe the Charter rights of suffering Canadians, and to enshrine that violation in law. 

The Supreme Court of Canada established for all adult, competent Canadians suffering intolerably from a grievous and irremediable medical condition the right to choose assistance in dying. This government would have us honour that right onlyfor patients nearing the end of life.

The Canadian Bar Association has said that such a restriction does not meet the floor of rights established by the Court. The Quebec Bar Association has agreed. So has the Canadian Council of Criminal Defence Lawyers, the BC Civil Liberties Association and many other respected legal organizations.

I suggested removing this line to help the bill comply with the Court and the Charter. That idea was rejected by the Liberal majority.

Now the Alberta Court of Appeals has ruled unanimously that the government’s interpretation of Carter is incorrect. In a crucial decision, the court wrote, “Carter 2015 does not require that the applicant be terminally ill … The decision itself is clear. … The interpretation urged on us by [the Crown] is not sustainable having regard for the fundamental premise of Carter itself.”

This is a devastating indictment of the very argument that the government relies upon to defend C-14 against a rising chorus of critics. This ruling should give pause to every one of us.

But still, some will argue that the Supreme Court cannot be obeyed right away. That medical reality dictates a “balanced” approach.

But the government’s restrictions have raised eyebrows in the medical community, as well.

The federation representing every medical regulatory authority in Canada has called this bill’s end-of-life requirement “too vague to be understood or applied by the medical profession and too ambiguous to be regulated effectively.”

The College of Physicians and Surgeons of Ontario called it inconsistent with Carter and likely to cause confusion amongst physicians.

The Canadian Nurses Association suggested going back to the words of the Supreme Court. If that were done this controversial line could simply be deleted. I proposed doing exactly that and my amendments were rejected by the Liberal majority.

But not only are medical groups concerned about this bill, many were never even consulted.

According to testimony at the Senate, neither the Federation of Medical Regulatory Authorities of Canada nor any of the provincial or territorial colleges were consulted in the drafting of this bill.

So, Mr. Speaker, we have a bill in which a few key lines have drawn heavy fire from the legal and medical communities. These lines could be written on a napkin. They could easily be deleted and—as my amendments would have done—replaced with the exact words of our Supreme Court. And yet this government refuses.

On the first day of committee hearings, a Liberal member asked the Minister of Justice a simple question: “Have we sought outside counsel to ensure Charter compliance of this bill?” The minister chose not to answer, citing only her personal confidence in the bill. Clearly, no independent confirmation of its Charter compliance has been found.

I appreciate what the Minister told the House recently, that no one has a monopoly on interpreting the Charter. And the Minister is right. But I’m afraid the outlier here is not the critics, it’s the government. The Canada and Quebec bar associations. Eminent legal and medical experts. The lead counsel in Carter. All are saying that this bill does not obey the Supreme Court’s ruling. And against that array the government stands almost utterly alone, brandishing a ‘backgrounder’ from the Justice department, refusing to refer the question to the Supreme Court or even to obtain any independent legal opinion.

And now the Alberta Court of Appeals has unanimously rejected the government’s argument that the Supreme Court limited its ruling to end-of-life patients. Let me repeat that: a provincial court of appeal has already ruledthat the government’snarrow and selective reading of Carter—the legal argument which supports this bill—is not consistent with the Supreme Court’s ruling and therefore an infringement of patients’ Charter rights.

We are now being asked to enshrine that violation in law.  And with what justification?

No argument has been made for this bill’s compliance with Carter and the Charter. The minister is right that C-14’s many critics cannot simply assertthat the bill is notconstitutional, but neither can the government simply assert that it is.

No one can claim to know the inner thoughts of our Supreme Court justices. But neither can the government continue to suggest that the intention of their ruling is somehow opaque and unknowable. The ruling was not an ink blot test. In fact, it was quite clear.  

The Court was looking at a law with the same objective as thisbill: to protect specific, vulnerable individuals during moments of weakness. The Court found the previous ban overbroad because it caught people outsidethat class—competent people who were not vulnerable and therefore deserved to have their autonomy respected.

That would remain true under C-14. An entire class of competent adult Canadians would be condemned to intolerable suffering and denied recourse to assistance in dying. They may be forced to end their lives prematurely or violently. These are the same violations of section 7 rights identified already by the Court.

And although the Court in Carter did not choose to proceed to an analysis of section 15 infringement, the trial judge did, concluding that the prohibition “imposed a disproportionate burden on persons with physical disabilities, as only they are restricted to self-imposed starvation and dehydration in order to take their own lives.” As Quebec’s minister of health warned us when he spoke out against the bill, this is precisely the same cruel option that will soon face patients if C-14’s end-of-life clause is not deleted.

In committee, I pressed the Department of Justice on this point. I told them the story of Tony Nicklinson. This story comes from an affidavit filed with the Court in Carter. During a business trip to Athens, Mr. Nicklinson suffered a severe stroke that caused Locked-In Syndrome. In this state, he could not move a single muscle in his body except his eyelids. His healthy, active mind was trapped in an unresponsive body—without remedy, without hope, and perhaps for decades. As he said, he could not even drink and smoke in the hopes of shortening his life. So Mr. Nicklinson wrote this affidavit one blink at a time.  He told the Court:

“The flaw in [the] argument is the assumption that we all want to live whatever the cost in terms of quality of life when this is clearly not the case.  I want to make that choice for myself.  What prevents me is the fact that I am too disabled to take my own life and unlike an able bodied person I need help to die.

By all means protect the vulnerable (by vulnerable I mean those who cannot make decisions for themselves,) just don’t include me.  I am not vulnerable.  I don’t need help or protection from death or [from] those who would help me if the legal consequences were not so huge…

I am asking for my right to choose when and how to die to be respected.  I know that many people feel that they will have failed if someone like me takes his own life and that life is sacred at all costs.  I do not agree with that view.  Surely the right and decent thing to do would be to empower people so that they can make the choice for themselves."

But Mr. Nicklinson did not live in a place which empowered him to make that choice. He did not have the option of medical assistance to die peacefully.

And so he starved himself to death.  

And, Mr. Speaker, if he were alive today, C-14 would offer him no hope, no respect for his autonomy. This is the point I made to the Department of Justice. I was told that I was wrong. I was told that Mr. Nicklinson would not have to starve himself to death in Canada—he would just have to starve until a doctor declared his death “reasonably foreseeable.“

That is what we are talking about when we say that this bill infringes the Charter of rights of Canadians. Quebec’s minister of health warned the government that this bill will force competent, consenting patients to endure starvation to win from this government the rights already granted to them by our Supreme Court.

But the Court found the previous ban unconstitutional not only because it violated the rights of competent patients, but also because it was unnecessary—a better system was possible. Vulnerability, they said, can be assessed on an individual basis, and well-designed safeguards are capable of protecting the vulnerable. With these facts, the Court could see no justification for continuing to deny the autonomy of whole classes of competent patients.

There is still no justification. In fact, the last refuge for the government would be to accept what is now clear—that C-14 does not meet the test of the Supreme Court—but to argue that this is somehow necessary, or even wise, because the safeguards they have developed are too weak to handle more complex cases.

This bill is flawed, but I could not accept that argument. I was proud to serve on the joint House-Senate committee that offered recommendations to the government before the drafting of this bill. We studied best practices around the world and recommended many of the robust safeguards found in this bill. And, above all, I have great confidence in the care and professionalism of Canadian medical practitioners. So I cannot accept that the Supreme Court was wrong in saying that well-designed safeguards canprotect vulnerable people. I cannot accept that this regime is so weak—or Canadian doctors so careless—that it cannot be trusted to faithfully uphold the full Charter rights of patients and filter out those who aren’t able to make this choice. 

And so I’m left with a simple conclusion.

Enacting this bill would revoke—from an entire class of competent and suffering adult Canadians—the rights established for them by the Supreme Court. And it would do so in manner that is neither medically necessary nor legally justified. I have sought to amend it and seen those solutions rejected. I have requested independent constitutional analysis and found none. I have called on the government to refer it to the Supreme Court and they have not. Now I cannot—as a lawyer and a parliamentarian—support the enactment of a law which I believe would be unconstitutional from the outset. A vote for this bill is a vote against the Charter rights of suffering patients. I know some of them by name, and I cannot do that.

Now, the government may try to excuse the bill’s imperfections as inevitable in the circumstances. And I know there are Members here who recognize that the bill is flawed, but have been told that it simply must pass by June 6.

So let’s be clear about what happens on June 6. The absolute ban on medically-assisted dying will not be restored. Nor will the offences that prevented it---such as Aiding Suicide—disappear from the Criminal Code. In other words, crime will not become legal, nor will medical assistance in dying become illegal.  Rather, an exemption will open for patients and physicians acting within the parameters of the Carter decision. Over the last year, every provincial medical regulator has developed and implemented rules and safeguards that physicians must follow when providing assistance in dying. These rules will be in place on June 6. Many of these rules are substantially similar to the safeguards found in this bill. Indeed, all of them require two doctors to confirm eligibility and voluntariness. All of them require extensive documentation of all requests. And all of them respect practitioners who choose not to participate for reasons of conscience. And, of course, one province already has a full legislative regime in place.

So, let us be clear: a federal law is not necessary to provide basic access and safeguards. But federal leadership is required to promote equitable access and harmonize standards between the provinces. So this is outcome is not ideal. It’s not the outcome for which we’ve worked long days, and late nights, in good faith, and with all parties—but it is better than accepting flawed legislation, defying the Supreme Court, and violating the Charter rights of suffering Canadians.

So I would call on my colleagues across the aisle—with whom I’ve worked constructively and collaboratively—to give real meaning to this free vote. To prove by their example what Canadians know to be true: that the final word on our constitutional rights comes not from the PMO but from the Supreme Court of Canada; that ‘good-enough’ legislation is not good enough here; that when it comes to honouring in full the Charter rights of every Canadian, better is always possible—in fact,it’s necessary.  

I know that this debate is complex—but I have one last solution to offer, and it is a simple one. And that is for us to refer the controversial clause in this bill to the Justice Committee with an instruction to review its consistency with the constitutional parameters in Carter.  This is the clause highlighted as unconstitutional by the Canadian and Quebec bar associations. This is the clause that would directly deny competent and suffering Canadians the rights granted to them in Carter. This is the clause that was fundamentally rejected by the Alberta Court of Appeals. Given that there is a viable medical regulatory regime already in place, we are under no obligation to rush through this controversial clause against the advice of these legal and medical experts. We do not need to limit debate. We do not need to ignore the concerns of Canadians. We do not need to rush through a flawed bill to meet an imaginary deadline.

So, Mr Speaker, I move, seconded by the Member for new Westminster - Burnaby:

That the motion be amended by deleting all the words after the word '“That” and substituting the following:

“Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), be not now read a third time but be referred back to the Standing Committee on Justice and Human Rights for the purpose of reconsidering Clause 3 with a view to ensuring that the eligibility criteria contained therein are consistent with the constitutional parameters set out by the Supreme Court in its Carter v. Canada decision.