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Our Assisted Dying Bill Maintains Respect For Life

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Chris Wattie / Reuters

Jody Wilson-Raybould, minister of justice and Attorney General of Canada, appeared before the Senate Wednesday to defend Bill C-14, assisted dying legislation that has raised questions from Canadians on both sides of the difficult issue. Here are her prepared remarks.

Honourable Senators, it is my great pleasure to be here today to address you all on the sensitive and complex matter of medical assistance in dying. I would like to begin by thanking the Senators who participated in the Special Joint Committee on Physician-Assisted Dying, and those who sit on the Legal and Constitutional Affairs Committee, which concluded its pre-study of Bill C-14 a few weeks ago.

This issue has captured the attention of Canadians. Each and every one of us has personal stories that have shaped our thoughts and feelings. As Parliamentarians, we will be influenced by our personal histories and our individual fears about the future, but we must legislate for all 36 million Canadians, on whose behalf we have the privilege of coming to this place every day.

Bill C-14 reflects a reasonable, balanced approach to the criminal law dimensions of medical assistance in dying, where Parliament's jurisdiction primarily lies. Medical assistance in dying is different from all other forms of medical care in that, in the absence of an exemption, it is otherwise criminal conduct of the most serious nature.

Bill C-14 was developed with due consideration of what Canadians have had to say during the many consultations that have taken place.

Bill C-14 creates a series of exemptions from otherwise applicable criminal offences, so that physicians and other medical providers can help suffering individuals who choose to have a peaceful, medically-assisted death, without fear of criminal prosecution. It builds in clear statutory parameters around the types of individuals who are eligible. Indeed, it was carefully crafted to provide as much flexibility as possible to medical practitioners to determine when and how a person's death has become reasonably foreseeable.

Unlike some U.S. state laws that require a specific prognosis and a fatal disease, Bill C-14 does not require a strict temporal or causal relationship between any single medical condition and the foreseeability of death. This purposeful flexibility recognizes circumstances such as those of Kay Carter, who was in the final stages of her natural life, even though she did not suffer from any single condition that was causing her death.

Bill C-14 also includes a critical set of safeguards that are designed to give Canadians confidence that life will only be ended where that is the genuine and firm wish of the person. Yesterday, a coalition of over 30 disability rights groups from across the country highlighted the need for these safeguards in order to protect vulnerable persons. Bill C-14 would also create the framework for a national monitoring system, which will produce the information necessary to assess its effectiveness and safety.

Bill C-14 was developed with due consideration of what Canadians have had to say during the many consultations that have taken place. It strives to respect the diverse interests that are implicated by this issue, which include those of the individuals who might seek medical assistance in dying, those of individuals who may be put at risk by legalization, and the interests of medical providers who, in the name of compassion, are being asked to take actions that have been legally prohibited and contrary to their professional ethics until very recently.

In charting our course forward, our Government followed the roadmap set out by the Supreme Court in its Carter ruling. While the Court found that an absolute prohibition was unconstitutional, and thus Canadians should be permitted to request medical assistance in dying in certain circumstances, it also said that the autonomy of individuals who seek assisted dying must be balanced against other, competing, values -- the protection of the vulnerable and what the Court called the sanctity of life. We may refer to this more plainly as respect for life, or the equal and inherent value and dignity of every person's life.

The Court acknowledged that giving some the ability to legally end human life creates risks for vulnerable individuals, risks which did not exist under the previous absolute prohibition. Parliament's duty is to listen not just to the voices of those asking for access to this new service, but also to those expressing fear for their safety in their interactions with the medical community, fear for the safety of their communities, and fears that their lives are being devalued.

As one individual with a disability testified before Committee in the other place: "this right to die makes me feel as if society thinks I should choose to die." Their lives are just as valuable as those of all other Canadians, and Bill C-14 aims to promote this message by limiting access to those who are approaching death. Bill C-14 also aims, to the degree possible as a matter of criminal law, to re-inforce suicide prevention and to guard against death coming to be seen as a solution to suffering. A coalition of disability rights organizations, academics, lawyers and physicians, among others, consider limiting medical assistance in dying to those who are nearing death to be a necessary safeguard to protect the lives of vulnerable individuals.

Our Government is not willing to put the lives of those who are vulnerable at risk in this way; nor does the Charter require such risks to be taken.

The Supreme Court itself recognized these competing values, and that Parliament has a "difficult task" in weighing and balancing them. I am confident that Bill C-14 strikes a reasonable balance amongst all the competing interests. The Carter decision told us that the absolute prohibition against assistance in dying was unconstitutional, but it did not tell us what a new law should look like. A new law must respect the legal principles set out in Carter but it does not have to exactly mirror the wording from the court to be constitutional. This is because Bill C-14, as compared to the provisions that were struck down in Carter, is based on different objectives and new evidence. This is consistent with the principle that the relationship between the courts and Parliament is one of "dialogue." Parliament must respect court rulings and respond to them in good faith. In turn, courts must show deference to Parliament's judgments about the appropriate balance of fundamental interests and values.

Bill C-14 addresses both aspects of section 7: respect for autonomy, and respect for life, and strikes a new balance through a complex regulatory regime which the Court has said will be entitled to deference. Allowing some to have access to a medically assisted death, in order to spare them the suffering and indignity of a painful and degrading dying process, can be accomplished relatively safely, without unduly risking the lives of the vulnerable. But we do not have the same confidence with respect to eligibility for those who are not nearing the end of life. Assistance in dying in this context presents too many distinct risks, which some have said the medical community is not well-suited to address.

A wide range of circumstances can cause or contribute to suffering in those who are not dying, such as loneliness, social marginalization or discrimination, poverty, and grief, for instance. Many argue that no system of safeguards can guard against all such risks. The relationship between medical assistance in dying and suicide is also very poorly understood. How does the availability of a medically assisted death impact broader suicide prevention initiatives? This is a complex question, involving difficult predictions about human behaviour, on which there is a diversity of views. Nevertheless, the experience in the few jurisdictions that permit assisted dying where death is not otherwise approaching gives us cause for concern. Our Government is not willing to put the lives of those who are vulnerable at risk in this way; nor does the Charter require such risks to be taken.

The constitutional rights and freedoms enjoyed by Canadians are not absolute. The Charter sets out these rights and freedoms, and these are guaranteed "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Court in Carter acknowledged that medically assisted death involves complex issues of social policy and a number of competing interests. In matters of this nature, Charter analysis takes into account the fact that there is no single right answer. Further, deference is shown to the choices of the legislative branch as long as its solution falls within a "range of reasonable alternatives."

The overwhelming majority of free and democratic societies do not permit any form of medically assisted dying. Of the few that do, the majority have chosen to limit access to those in the final stages of life. The experience in Belgium and the Netherlands -- where assisted dying is not restricted to the end-of-life context -- suggests that broader eligibility would frustrate a number of the objectives of Bill C-14. As Minister of Justice and Attorney General of Canada, I am confident that Bill C-14 is a reasonable and justifiable policy choice.

Honourable Senators, with that being said, our Government has committed to studying broader forms of eligibility, and in particular eligibility for individuals suffering solely from a mental illness. There is still much that we do not know, and all Canadians can only benefit from having these issues explored more fully.

Another issue that the Government has committed to studying is the possibility of advance requests for medical assistance in dying. I am aware that the pre-study report by the Legal and Constitutional Affairs Committee has unanimously recommended that Bill C-14 be amended to permit medical assistance in dying for those who are no longer competent, but who made an advanced request after being diagnosed with a condition likely to cause loss of competence or of a grievous and irremediable condition.

We are fully aware of the high priority that Canadians are attaching to this issue.

This is an extraordinary step, a step that we are not compelled to take as a result of Carter, and a step that creates risks that we are only just beginning to grasp. Because of the similarities with substitute decision making in health care, we need to take the time to fully consider advance requests.

From the point of view of the person who makes the advance request, it is a genuine reflection of their autonomy to state what they want to happen in the future if certain conditions arise and they are unable to speak for themselves. But from the point of view of the person to whom the advance request would apply, we can never be sure death is what they want at the time that the advanced request would be acted upon. The decision to end their life was made by their former self, and they are neither able to confirm nor withdraw that request at the critical moment.

We have no useful international experiences to draw from. In the one place where advance requests for medical assistance in dying have been lawful for some time, the Netherlands, physicians are generally unwilling to follow through on these requests. Parliamentarians heard from Canadian physicians that it is already extremely difficult to implement advance directives, and that it would be even more complex to do so in the case of medical assistance in dying. We have no other information about the willingness of Canadian physicians to engage in this practice. We need to take the time to get this right; getting it wrong will result in the deliberate loss of human life.

Finally, some have suggested that those who suffer from dementia are "shells," and lack dignity and humanity. As the Canadian Alzheimer's Society reminded us when they appeared before the Special Joint Committee, dementia patients are human beings with Charter rights. We should be mindful of the existing stigma associated with this type of disease; its course is unpredictable and it is in fact possible to live well with dementia. This organization has publicly stated that medical assistance in dying should only be possible when a person is competent at the time that the assistance is administered.

Honourable Senators, our Government has been clear that this issue will be studied. We are fully aware of the high priority that Canadians are attaching to this issue. We are taking this seriously but we do not believe that we are ready to take this very significant step today.

I would like to address why we must have a law in place as quickly as possible. The interim court-approval process will end on June 6th, and without federal legislation in place, medical assistance in dying will be unregulated as a matter of criminal law, and without any statutory rules outside of Québec.

Parliamentarians have heard diverse interpretations of the Carter ruling, and we have heard that "grievous and irremediable" are not known medical terms. This translates into uncertainty for physicians. The uncertainty presents a legal risk to the medical professionals who are being asked to take on the responsibility of providing assistance, and to bear the risk of a criminal investigation or prosecution. A complaint might be lodged by a family member who feels that the physician did not take reasonable care with their loved one, or by a colleague who disagrees with a physician's determination of what "grievous and irremediable" means. Although the likelihood of a criminal investigation or prosecution would be small, the potential consequences would be dire. A number of medical professional bodies have stated that clear legislative protection is an absolute necessity for physicians to feel secure with giving assistance.

Dying patients are by far the largest class of individuals who seek medical assistance in dying, even in the very few jurisdictions that permit broader access.

Moreover, Carter does not appear to provide any legal protection to nurses, nurse-practitioners, psychologists, social workers, pharmacists, or a myriad of other professionals who could be asked to be involved in assessing requests.

Comparisons have been made to the striking down of the abortion laws, with no new laws enacted in their place. This comparison is not apt. When the abortion law was struck down, there was no criminal law left that could apply to the medical act in question. But deliberately ending a person's life continues to be murder, and charges can still be laid wherever law enforcement authorities consider actions to have fallen outside the scope of the Carter ruling. Despite the many statements we have heard that Bill C-14 is overly restrictive, a legislative vacuum on June 6 has the potential to operate as a barrier to access due to the legal uncertainty for the medical providers who would be asked to assist their patients.

While medical colleges have put in place polices in all provinces and one territory, these do not have the force of law and are inconsistent in several key respects, including in terms of who is eligible and what safeguards must be followed. Yesterday, in a piece in the Globe and Mail, the president of the Canadian Medical Association, Dr. Cindy Forbes, highlighted the need for Bill C-14 to be passed, so that there is a consistent national legislative framework. Further, compliance with a medical college policy is no guarantee of criminal immunity as courts are not bound to accept a medical college's interpretation of Carter. Clear criminal laws are needed so that medical providers will have the security they need to help their suffering patients.

Honourable Senators, the data is clear. Dying patients are by far the largest class of individuals who seek medical assistance in dying, even in the very few jurisdictions that permit broader access. Bill C-14 clearly and directly addresses the needs of these Canadians. There is a broad social and medical consensus that medical assistance in dying is appropriate in these circumstances. Without this law in force, these very Canadians are likely to face barriers to access.

While some would prefer broader eligibility with fewer safeguards, and others would prefer narrower eligibility with enhanced safeguards, Bill C-14 reasonably balances both sets of interests. It is a reasonable and responsible law that respects individual autonomy to choose one's manner of dying, and at the same time, like other free and democratic societies, it maintains respect for life, suicide prevention, protection of vulnerable persons, and the equal and inherent dignity of all Canadians.

Thank you.

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