Feds Granted Court Extension as Assisted Dying Bill Debated in Senate

Feds Granted Court Extension as Assisted Dying Bill Debated in Senate
Justice Minister David Lametti at a news conference in Ottawa on Nov. 26, 2020. (Adrian Wyld/The Canadian Press)
Justina Wheale

A Quebec judge has granted the federal government another delay in bringing medical assistance in dying legislation into line with a ruling from the province’s Superior Court.

The new deadline to pass the proposed legislation is now Feb. 26, a date requested by Justice Minister and Attorney General David Lametti.

The decision comes as senators debated the legislation this week in attempts to meet the previous Dec. 18 deadline. The government’s representative in the Senate, Sen. Marc Gold, conceded that the upper house won’t finish its consideration of Bill C−7 until mid-February—long past the previous court-imposed deadline that was set to expire Friday.

Even if there was consensus on the controversial bill it would have been a tight deadline to meet, as senators had just a week to debate the bill before the original deadline. However, senators continued to raise concerns about the legislation during the second reading, and suggested amendments would be forthcoming.

During debate on Dec. 16, Conservative Senate leader Donald Plett called Bill C-7 “frighteningly flawed” and promised “there will be amendments.”

“I don’t care how often we have to send it back. There are safeguards that have been taken out of this bill. ... If those safeguards are not in there, I will never vote for this bill,” he said.

In a statement, Gold said he had hoped the Senate could finish dealing with the bill before the previous deadline.

"Because the Senate received the bill so late in the calendar, fast-tracking Bill C-7 through all stages by December 18 would have required the unanimous consent of all senators,’’ he said.

"But given the significance of this legislation, senators have expressed a legitimate desire to fulfill their constitutional role of sober second thought."

 A view of the Senate chamber on Parliament Hill. (The Canadian Press/Sean Kilpatrick)
A view of the Senate chamber on Parliament Hill. (The Canadian Press/Sean Kilpatrick)

The bill attempts to bring the federal law into compliance with a September 2019 Quebec Superior Court ruling by Justice Christine Baudouin, who found it unconstitutional to only allow MAiD for people near death, as prescribed in the current law, Bill C-14.

Passed this month in the House of Commons with support from the NDP and Bloc Quebcois, debate on the new Bill C-7 began in the Senate this week after being sponsored by Sen. Chantal Petitclerc of the Independent Senators Group. C-7 would expand the number of people who can access MAiD, including those whose death is not “reasonably foreseeable.” The bill would set up two tracks for eligibility: one with somewhat relaxed rules for those who are near death and a second with more stringent rules for those who are not.

A common complaint from critics is that the bill removes key safeguards in the original legislation: scrapping the 10-day reflection period required under C-14, reducing the number of witnesses needed from two to one, and dropping the requirement that a person must be able to give consent a second time immediately before receiving the procedure.

Plett said during his tenure in the Senate he’s never seen a bill “with such widespread disapproval,” referring to more than 80 witnesses including ministers, advocacy groups, medical practitioners, and other stakeholders who testified during the Senate’s pre-study of the bill.

The most common concern raised by witnesses, he said, was that the legislation would broaden access to medically assisted death before improving supports for those living with disability or chronic illness and access to palliative care, “making it easier to die than to live.”

“We are not offering most Canadians who qualify for assisted suicide a fair and honest choice between life and death,” he said.

Senators also echoed concerns raised by several disability support organizations that object to the government boosting access to MAiD instead of improving services for people with disabilities.

Petitclerc, who suffers from a disability herself, said the conflicting objectives are “not mutually exclusive,” and that work needs to be done in both areas simultaneously.

“On the one hand, bill C-7 aims to allow access to MAiD to relieve intolerable suffering before death is reasonably foreseeable,'' Petitclerc said. “On the other hand, we must ensure that efforts are put forward to make sure that persons with disabilities have access to everything they need to live a full and rich life.''

Gold said senators have a duty to try to balance competing rights and interests in the bill, arguing that the government has struck a “reasonable and responsible balance'' between the autonomy of intolerably suffering Canadians who are not near death and the need to protect the most vulnerable individuals.

But he also conceded it's possible that the bill may be struck down as unconstitutional by the courts.

“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,'' he told the Senate on Dec. 15.

“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.''

Senators wrapped up opening debate on the bill today but it must now be scrutinized by the Senate’s legal and constitutional affairs committee before being sent back to the chamber for final debate and possible amendments.

Among the most likely amendments to the bill:

— A sunset clause on the bill's proposed explicit prohibition on MAiD for people suffering solely from mental illnesses. Senators with extensive legal backgrounds, such as former judge Pierre Dalphond and Carignan, believe excluding an entire class of people violates equality rights.

Such an amendment would be vigorously opposed by other senators, such as Conservative Sen. Denise Batters, who fear it would amount to state-sanctioned suicide for people whose illness makes them prone to depression.

—Remove or reduce the more stringent eligibility rules the bill would impose on people who are not near death, which Carignan and others believe violates equality rights.

But other senators, Batters and Plett among them, are expected to propose even more stringent safeguards to, as they see it, protect vulnerable people from being coerced— either directly or indirectly through societal attitudes and a lack of support services—into receiving MAiD.

—Add a clause specifying that doctors and nurses can't raise the subject of MAiD until a patient initiates a discussion about it. Plett wrung a promise out of Disability Inclusion Minister Carla Qualtrough that the government would seriously consider such an amendment, which she said she'd personally support.

—Require longer than the proposed 90 days for assessing a MAiD request from a person who is not near death.

—Require that persons not near death be given access to counselling services, mental health and disability support services, community services, and palliative care—not just be informed of such options as proposed in the bill.

—Restore some of the safeguards the bill proposes to eliminate for those who are near death, including the 10-day waiting period between being approved for MAID and receiving the procedure, and requiring two witnesses instead of just one.

With files from the Canadian Press