Report Stage Speech on C-14

On Tuesday, May 17th, 2016 in Speeches
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Madam Speaker, it is an honour to be able to rise at report stage. I appreciate the decision of the Speaker to recognize that if there was ever a time for exceptional circumstances and exceptions under our Standing Order 76(5), this is such an occasion.

The use of the exceptional circumstances here is to allow a real opportunity at report stage to improve the bill. This is not a fake debate about amendments that have no hope. It is my profound hope that the amendments before the House now as we debate this at report stage, with a free vote, with every member allowed to weigh in, we can yet improve this legislation to the point where the vast majority of us will be comfortable voting for it, with amendments. As it is right now, I do not know if this bill could pass this House, in its current state.

Let me just go back for a moment, for context. I do think context and empathy are important on all sides of the House. This Bill C-14 is the direct result of the Supreme Court of Canada’s unanimous decision in February 2015 to accept that certain provisions of the Criminal Code violate the Charter of Rights and Freedoms insofar as they affect people who are suffering from grievous and irremediable medical conditions, and wish to have the right to choose their own time and way of dying. As the court wrote at the time, an individual’s choice about the end of her life is entitled to respect.

In my time in Parliament, there has not been a bill that is more difficult to talk about, that touches on aspects of our own personal principles, faith, belief, rights, and politics, all wrapped up in a charter decision. It is has been difficult to talk about, but I think it has been approached on all sides with appropriate respect. As my colleague just mentioned, the chair of the justice committee, the hon. member for Mount Royal did an exceptional job in steering through the many amendments that were reviewed in committee. However, not enough of those amendments were accepted to make the bill acceptable.

Let me go through why I do not think I can vote for the bill without amendments. It is not about what I think; it is not about whether I think the bill is satisfactory. I think everyone on all sides of the House, including government members, admit that it is flawed. It is not quite what one would want, compared to, for instance, the exceptional report of the committee that guided the government, the joint committee report of the House and Senate on how to respond to the Carter decision. This bill falls short.

That is not the basis on which I cannot vote for it now. It is not my opinions. Our challenge as parliamentarians is to ensure that whatever we pass meets the standard set out for us by the Supreme Court of Canada in assessing what was it about the status quo that made the situation for Kay Carter one that was not merely unfair but a violation of her Charter rights.

That is the key question here. There is a level of provision for medically assisted dying below which government legislation cannot sink. That bar, that line is charter rights, as set out by the Supreme Court of Canada.

I wanted to comment and focus a bit on this question on, as set by the court, an individual’s choice about the end of her life being entitled to respect. I suppose we could wish that the court now used the female pronoun and intended it generically, as we have heard the male pronoun used throughout our lives to be used generically.

However, I think it can be inferred that the Supreme Court of Canada, using the female pronoun, is talking about the plaintiff before them. It is talking about Kay Carter. Would Kay Carter have access under Bill C-14 to medically assisted dying? Most observers at this point that I have heard, knowledgeable observers, do not believe she would.

That, to me, is the crux of the debate, which means that her charter rights would still be infringed, even after we pass Bill C-14 as it is currently written.

Kay Carter was not about to die from her illness. She had a spinal stenosis that would not kill her. I want to refer to specifically the way Jocelyn Downie, professor of law and medical at Dalhousie University described it that in her view that Bill C-14 is unconstitutional. I want to read an excerpt from Professor Downie: “There was no evidence on the record before the court that Kay Carter’s death was reasonably foreseeable in any temporally proximate way. In fact, it was just the opposite”.

To pick one of many possible examples from the evidence before the court, as Kay Carter wrote in her letter to the Dignitas clinic in Switzerland: “The neurologist, Dr. Cameron, of North Vancouver assessed me and I had a cat scan and MRI done. From these tests he told me that I had an ongoing slow deterioration of the nerves that would never kill me, but eventually would reduce me to lie flat in a bed and never move”.

In other words, Kay Carter would not fit the definition within the bill that the requirement to be grievous and irremediably affected in a condition that would allow medically assisted death would be a death that was reasonably foreseeable. That clearly suggests, although the language is somewhat vague, that Bill C-14 requires that a person be grievous and irremediable within the meaning of the act to access medically assisted dying has to be in a terminal state.

The court in its unanimous decision may have left for those who were hoping to find a loophole some ambiguity, but I do not think it is there when the facts of the case right in front of them, Kay Carter, was not in a terminal state and beyond that when the government went back to the court, and this is where I have sympathies for the current government, the Supreme Court gave a year from the day of the decision in February 2015, but the Minister of Justice was not sworn in until November 4. The Prime Minister was not sworn in until November 4. The time limits imposed on the new Liberal government is not of its making and I am clearly sympathetic.

I opposed at the time going to the court to ask for an extension because deadlines such as this, given that the effect of the court’s decision rendering those Criminal Code sections unconstitutional, I do not believe will create chaos or a situation that cannot be managed.

But to go back to that moment when the Government of Canada went to the Supreme Court to obtain an extension and in this excerpt Madam Justice Karikisanas says clearly in questioning one of the counsel and I will quote her because the context she is asking: I’m thinking particularly about somebody has to be a la fin de vie …” whereas in Carter we rejected terminally ill.

Let me put it again clearly. A Supreme Court of Canada justice says in Carter we rejected terminally ill. That is clearly the standard for ensuring that rights are protected is that we must not ensure that in order to access medically assisted death the person be on the verge of death, if their death be reasonably foreseeable, even if we take reasonably foreseeable back to a year or two years. Kay Carter did not have that circumstance.

Another medical expert who has written about Bill C-14 since it came forward, Professor Jesse Pewarchuk, who is a clinical assistant professor of medicine at the University of British Columbia, wrote: “Worse the wording of the proposed law introduces significant doubt as to whether an Alzheimer’s patient who is yet to lose capacity yet is certain to, would even be eligible since death can take years even from the point of entering long-term nursing care”.

“Foreseeable death, a advance state of decline in capability are loaded ambiguous clauses that seem to eliminate the charter rights of dementia patients and to put any physician carrying out their wishes in considerable legal peril”.

Without these amendments passing at report stage, I cannot vote for Bill C-14. In an ideal world, I would rather there was a framework of laws for doctors to follow, for nurse practitioners to follow, for a framework, consent, reforms, and the witnesses and the independence and the elements of law. But if these amendments are not passed, I cannot vote for a law that falls below the bar of what the Supreme Court says constitutes protection of charter rights.

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  • James Bodie

    I am impressed again by Ms. May’s clarity of thought and ability to cut through to the essence of the issue. If only we could replace the House of Commons with 338 clones of Elizabeth May.

  • Doris Routliffe

    People with neurological conditions, e.g. Alzheimer’s, Parkinson’s, Widow’s Hump, are facing certain suffocation. They must be able to “exit” via giving advance directives.

    • pieinthesky

      Advanced directives are a non-starter, with Alzheimer’s you cannot under Bill C-14 do cognitive testing and check out in the competent window so Elizabeth is correct, you have no charter rights. Why would you want to put the burden on someone else to do it for you. Probably 1 in 100 do any cognitive testing, the rest live in denial and do nothing to prepare. Gillian Bennett is an extremely rare exception. With most other conditions like Parkinsons you are competent until very late stages so why do you need anything “advanced”.

      Switzerland is quite close to Carter, so competent but allowing it for early Alzheimer’s and psychological or disability reasons. They only have 1.3% choosing the option, which in Canada is just over 3K a year. That’s minuscule.

      • Doris Routliffe

        The ability to give advance directives, i.e. in advance of cognitive or verbal incapacity, is precisely for the purpose of NOT ‘putting the burden on somebody else’. Suffering with Parkinson’s, my brother-in-law could not move, eat, speak for decades . . . he would, no doubt, have wanted to end this suffering, if assistance had been available to him.

  • Dragonruth

    Once again, Elizabeth comes forward with an intelligent response to not only improve Bill C-14 but bring it into compliance with the Supreme Court decision. And once again, Justin Trudeau, as in other recent statements about his ‘promises’, dodges her question about ‘compliance with Charter Rights’. Justin’s attitude and ‘double-speak suggests that he is planning to push this bill through as is. It certainly makes me wary about all the other promises he gave us in October….. C-51, Missing and Murdered Indigenous Women, increased funding for Indigenous student education, revision of the NEB, a climate strategy that complies with the Paris accord …. We gotta watch that guy pretty closely! Thank goodness for Elizabeth!

  • C Greenwood

    Although I agree, I do not think these amendments will receive enough support. Is it better to have something imperfect or nothing at all?

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