From Parliament Hill: How the medical assistance in dying bill came to be law

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Wayne Stetski is the member of Parliament for the Kootenay-Columbia riding.

Earlier this year, I said that there were three bills coming to Parliament that would, if approved, fundamentally change our lives as Canadians: medical assistance in dying, the legalization of marijuana and electoral reform. The first bill, related to medical assistance in dying, has just cleared the House of Commons and the Senate and is now law. Here, with the help of my colleague and NDP Justice Critic Murray Rankin, is a summary of how it got there.

A special all-party committee of both the House and Senate met in January to hear from experts and develop recommendations on the government’s response to Carter v. Canada. The Supreme Court of Canada had given Parliament until June 6 to come up with a new law. The committee held 11 hearings, calling more than 60 expert witnesses and reviewed the work of recent studies that together had consulted more than 13,000 Canadians and 100 organizations nationwide.

In the end, a majority of the committee agreed on 21 recommendations, including that the law should allow competent Canadians who receive a long-term degenerative diagnosis, such as Alzheimer’s, to make advance arrangements for their future care, including specifying the conditions in which they request assistance in dying. Recent polls have shown that 85 per cent of Canadians support the right to make an advance request.

The committee also found that the Supreme Court’s words on eligibility were clear and should not be altered. The Carter decision included patients with “a grievous and irremediable medical condition” or “enduring and intolerable suffering”.

The NDP pushed for the federal government to work with provinces to develop a pan-Canadian palliative and end-of-life care strategy. While palliative care is not applicable in all cases where assistance in dying may be sought, it is vitally important that the government seize the opportunity to offer every Canadian the quality palliative care they deserve at the end of life.

Bill C-14 was introduced by the Liberal government in mid-April. The bill ignored or rejected more than half of the all-party committee’s recommendations. The most important differences were that it explicitly ruled out advance requests, leaving the matter to a future study with no planned start or end date, and effectively limited access to medical assistance in dying to only patients with terminal conditions by requiring that their natural death be “reasonably foreseeable”.

After being passed at second reading, Bill C-14 was then sent for review to the justice committee. Over the course of Bill C-14’s consideration at the justice committee, a growing number of legal experts testified that, by limiting access only to terminal patients while excluding those suffering with incurable, non-terminal conditions, the bill did not meet the requirements of the Supreme Court. They argued that Bill C-14 would continue to infringe the Charter rights of those patients and was therefore likely unconstitutional.

At the end of witness testimony on Bill C-14, the Opposition parties put forward amendments to improve it. New Democrats tried to amend the bill to allow advance requests — or even just open the door so that the provinces could create systems for advance requests, if they wished. The NDP also proposed to remove the government’s additional eligibility requirements and to instead use the words of the Supreme Court ruling in the law.

The first day of the justice committee’s clause-by-clause review ended with every Opposition amendment rejected. By the end of several days of review, a handful of changes were accepted, but most were minor or technical in nature.

New Democrats did, however, broker agreements on two key amendments, which were adopted unanimously. The first added new commitments related to palliative care, care for dementia patients and appropriate services for indigenous patients. The second clarified that health practitioners would never be compelled to provide assistance in dying, and that their consciences would be respected if they did not wish to participate.

On the matter of the controversial eligibility requirements, the NDP proposed that the government resolve the argument by referring the matter to the Supreme Court, to decide whether or not it matched the terms of their ruling and respected patients’ Charter rights. The government refused.

Though it was a free vote, every NDP MP voted against Bill C-14 at third reading, refusing to support the passage of a bill that violated the Charter rights of patients. The bill was passed by the Liberal majority and then referred to the Senate.

During testimony in the Senate, Professor Peter Hogg — Canada’s foremost constitutional authority — stated that Bill C-14 would be found unconstitutional unless the end-of-life requirement was replaced with the broader eligibility criteria of the Supreme Court Carter decision. The lead counsel who won the Carter case, the Canadian and Quebec bar associations, and court decisions in Alberta and Ontario all reached the same conclusion. The Senate voted to send the bill back to the House with seven amendments, including the right to seek assistance in dying if suffering from irremediable and intolerable pain.

When Bill C-14 returned to the House, the government accepted some of the Senate amendments, but rejected the key amendment about eligibility. The Liberal government once again used their majority to approve the partially revised bill, sending it back to the Senate. With the government refusing to back down on the core provision in the bill, the Senate relented and accepted the government’s version of C-14 on June 17, which was swiftly given royal assent and passed into law.

So what happens now? While we applaud all Parliamentarians for the many good aspects of this bill, and for the respectful manner in which much of it was debated in Parliament, we continue to call on the government to immediately refer the law to the Supreme Court so that concerns about its potential violations of patients’ Charter rights can be resolved quickly — without forcing the most vulnerable Canadians back to court.

Wayne Stetski is the member of Parliament for the Kootenay-Columbia federal riding.