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Second Reading of Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying

 

Honourable senators, I rise today to speak to Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts, or as we know it, medical assistance in dying.

Medical assistance in dying is new to Canada. While a few countries and states do provide medical assistance in dying, we in Canada are now addressing the issue because the Supreme Court of Canada has forced Parliament to legislate medical assistance in dying after its unanimous decision in Carter v. Canada. The Supreme Court declared sections 14 and 241(b) of the Criminal Code void and suspended its declaration of validity for 12 months, after which it granted another extension of four months. As a result, Bill C-14, medical assistance in dying, is now before us in the Senate, honourable colleagues, for serious consideration and sober second thought. There has been much debate on the legislation, and amendment proposals have been put forth both in the House of Commons and in the Senate, ranging from moral conscience issues to legal concerns.

However, today I would like to speak on section 4 of the bill. The Senate Legal and Constitutional Affairs Committee recently tabled its third report on the matter and made a series of important recommendations for Bill C-14. I'm particularly supportive of the following recommendation put forth by the committee, Recommendation No. 8, which states:

. . . that the Minister of Health shall, instead of may, make regulations regarding the provision, collection, use, disposal and exemption of information relating to requests for, and the provision of, medical assistance in dying.

I would like to mention that Recommendation No. 8 was adopted unanimously by the committee.

I want to talk a little bit about the details of clause 4. It speaks about the regulations which would require information to be provided and collected in order to monitor medical assistance in dying, presumably to ensure there's no abuse and to ensure compliance with the legislation. I am thinking particularly about sections such as the section on safeguards.

Clause 4 goes on to refer to the information to be provided by medical practitioners, nurse practitioners, pharmacists, coroners and medical examiners, who all have a role in medical assistance for dying.

It also refers to the form, manner and time of the information to be requested as well as its use, analysis, interpretation, protection, publication, disclosure and disposal.

For such an important responsibility, there is currently a "may" not a "shall," so there are no regulations right now.

We are considering enacting this regulation without regulations which would help ensure that medical assistance in dying is properly carried out. This section of the act, I would like to mention, won't even come into force at the same time as the rest of the act. To me this demonstrates a lack of concern for the vulnerable, which was so evident in some of our earlier deliberations.

Honourable senators, why aren't regulations mandatory as per Bill C-14? There are a number of sections referencing the regulations, important sections on how medical assistance in dying will be monitored, yet the regulations are discretionary.

That section of the act won't even come into force at the same time as the other section of the act, so I think it is imperative that we consider the consequences of this bill and not rush it.

I want to go into some of the individual proposed sections within clause 4. The first one, proposed subsection 241.31(1), states:

. . . a medical practitioner or nurse practitioner who receives a written request for medical assistance in dying must, in accordance with the regulations, provide the information required by those regulations to the recipient designated in those regulations or, if no recipient has been designated, to the Minister of Health.

If there are no regulations to begin with, then there's no information required to be provided regarding the written request for medical assistance in dying. It just doesn't make sense.

Before I came to the chamber today, I went on the Internet to see how many abortions were performed in Canada last year. Now I'm wondering, when I look at clause 4 and it is not prescriptive with regard to the provision of information, are we going to know how many people accessed medical assistance in dying once this legislation comes into force? If clause 4 doesn't come into force, who is going to collect the information? Are we going to rely on the different jurisdictions? How will we ensure consistency?

Clause 4 also provides an exemption under the regulations that permits a medical practitioner or a nurse practitioner not to provide the information required under the regulations. So if there are no regulations at all, my question is exactly when are medical practitioners exempted from providing the information on request for medical assistance in dying? And why aren't they required to provide that information?

Then there's another section that says pharmacists who dispense a substance for medical assistance in dying must provide certain information as identified in the regulations to an individual also designated in the regulations.

Again, there are no regulations. So the information required from the pharmacist is not defined and neither is the individual to whom the information should be reported. If the information is not defined and the individual who should receive the information is not defined, then how can the government ensure that medical assistance in dying is carried out in accordance with the act?

As you read down through the different proposed subsections, you see a reference to regulations. But when you get further down and to the proposed section on death certificates, all of a sudden there's no mention of regulations. What it says is that the minister "may establish guidelines." That term just sort of fell out of the air and it is just in that section. It says the minister "may establish guidelines on the information to be included on death certificates where medical assistance in dying has been provided . . . ." This proposed section states that the information to be provided on the death certificate "may" include clearly identifying medical assistance in dying, as a manner of death, as well as the illness, the disease or disability that prompted the medical assistance in dying request.

That's concerning to me because, first of all, I don't agree with the term "guidelines." I think it should be in regulations. I think it should be mandatory. It shouldn't be "may"; it should be "shall." It also should be mandatory to clearly indicate on the death certificate that medical assistance in dying was the cause of death, and then the underlying illness, disease or disability should also be declared.

When you read that proposed section, when you see "may" and you know that the regulations aren't in force and you know that subsection isn't going to come into force with the rest of the act, you are wondering, where is it all at? Who is going to collect the information? What information is going to be provided? Will we know at the end of the day?

We have tens of thousands of physicians in Canada. When the legislation goes through, physicians will be able to provide medical assistance in dying, and what information is going to be provided? How are we going to monitor? I have no idea after reading the legislation.

When we get down toward the end of clause 4, it states that everyone who knowingly contravenes the regulations, which don't exist, is guilty of an offence or indictable offence. However, like I said, there's no regulation, so it is impossible to identify anyone who contravenes the regulations.

If there are no regulations, there's no guarantee that the provinces will regulate in a consistent way. I did raise that with the minister yesterday, and she did say that there were three provinces that had guidelines. It seems she was satisfied with three provinces, but what about the rest of the provinces and the territories? I know Senator Joyal did mention the Yukon, but I think we should be striving for consistency.

I'm of the opinion that there need to be federal regulations in order to maintain consistency in reporting and recordkeeping among the provinces to ensure protection of the vulnerable.

Many groups, individuals and organizations are concerned with the moral aspect of C-14 and are concerned about protection of vulnerable populations requesting medical assistance in dying. We can't possibly determine who these vulnerable populations are and further protect them if there are no regulations in place for the provision, collection, use, disposal and exemption of information relating to these requests.

So in summary, here are the issues: Clauses 4 and 5 of the bill will not come into force when the rest of the bill comes into force at Royal Assent. The bill is fragmented.

It appears to me that in a rush to get the bill done, priority was given to a certain part of the bill but no priority was given to this part of the bill.

Yesterday, as I said, the minister gave no indication of when these proposed sections would come into force, only to say that she was working with officials on the matter.

So there has to be a defined process whereby information is obtained on each medically assisted death case so that data can be collected. I would anticipate that this data would include the name of the individual, the physician, the nurse practitioner, the pharmacist, along with key players and information.

The problem I have is that this information hasn't been specified in either the bill or the regulations, nor is there any direction on what should happen to this data.

There's a big void in my opinion. We don't know what information should be collected, who is going to collect it, what are they going to do with the information once they collect it, what security is going to be over this very personal information, how the information will be disposed of, if it is disposed of, and what information will be included on the death certificates.

Honourable senators, I ask that you seriously consider the lack of regulations in Bill C-14 and the fact that clause 4 will not come into force at the same time as the rest of the bill, and the potential consequences this may bring as a result.

The Supreme Court of Canada has asked us to legislate medical assistance in dying, so we have an obligation to the court. More importantly, we have an obligation to our citizens to ensure appropriate measures are put in place for the protection of all Canadians.