Mr. Speaker, I will be splitting my time with the member for .
I am thankful for this opportunity to speak to the motion before us today. The motion declares that it is in the public interest to protect the freedom of conscience of health care professionals when it comes to medical assistance in dying; and that everybody has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms; and that a regime that would require health care professionals to make use of effective referral of patients could infringe on the freedom of conscience; and that the government should support legislation to protect the freedom of conscience of health care professionals.
It is the federal government's duty to provide legislation that would protect conscience rights of medical practitioners. With respect to the rights of Canadians, it is also the government's duty to protect and preserve our health care system.
Fundamental freedom of conscience is listed alongside other fundamental freedoms we also take for granted here in Canada, such as the freedom of religion, freedom of thought, freedom of belief, freedom of expression, freedom of the press, freedom of peaceful assembly, and freedom of association. Fundamental freedoms are not negotiable. They cannot be tossed aside if they are deemed by some to be inconvenient. Canada is not a dictatorship or a tyranny.
I know from comments made in the House and at committee that all members here are concerned about conscience rights. When Parliament has been faced with balancing conscience rights in the past, it has always strongly supported conscience rights. For example, in the Civil Marriage Act, it clearly states “no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction” when exercising their fundamental charter rights of freedom of conscience.
We can establish a framework that supports patient rights for end of life and supports conscientious objection. The problem is that Bill would not legally protect conscience rights. If Bill C-14 comes into force, it would immediately put the charter conscience rights of health care professionals at risk and ultimately undermine our health care system.
The government will argue that Bill was amended at justice committee this past week to prevent health care professionals from being compelled to participate in medical assistance in dying. The amendment made at committee states, “For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying”.
Let me be clear. The amendment made at the standing committee to Bill C-14 offers no legal protection to health care providers who feel that any involvement in medical assistance in dying goes against their conscience and their profession.
Just because Bill presently states that nothing in this specific section of the Criminal Code can compel health care professionals, it does not mean that any other entity still cannot compel or coerce a health care provider against his or her conscience rights. For example, an employer could insist upon it or a provincial health care regulatory body could as well.
Health care professionals have been clear that protecting their conscience rights means that health care professionals should never be required to refer patients, provide medical assistance in dying, or be discriminated against for their beliefs or conscience on medical assistance in dying.
During the Supreme Court of Canada hearings on the Carter case, the Canadian Medical Association expressed that “any legislative scheme must legally protect both those physicians who choose to provide this new intervention to their patients, along with those who do not”. Bill does not offer legal protection.
At committee, Conservatives put forward strong amendments to legally protect health care professionals' conscience rights and they were rejected by the government.
If Bill passes without legal protections for health care providers' conscience rights, Canada would be the first jurisdiction in the world that legalized assisted suicide without a robust conscience clause for health care providers.
It is also important to recognize that without federal government direction on conscience rights, Canadians and health care professionals would be faced with a patchwork approach, which is not what the Supreme Court of Canada intended. For example, the College of Physicians and Surgeons of Ontario is insisting on an effective referral system. This poses an immediate problem for those doctors who are conscientious objectors and are forced to choose between a career and conscience when this legislation comes into effect.
On Wednesday the Senate heard testimony from the Coalition for HealthCARE and Conscience, an organization and coalition that represents 5,000 physicians, 110 health care facilities, and 60,000 staff in the health care profession.
They expressed grave concern that Bill offers no legal protection for conscience rights of health care professionals. They were concerned that health care professionals might re-evaluate their career choice.
Through our discussions with the provinces, we know that it is unclear whether, in fact, they will decide to legislate. In this legal vacuum, hospitals, colleges, provinces, health authorities, nursing homes and hospitals can create policies that will encroach on the constitutional rights of caregivers. This will create chaos. For example, while one medical college, the CPSO, is requiring referral, at least seven others have already indicated they will not.
It is clear that a patchwork approach to issues like referrals and medical assistance in dying will take place. It is within this legal vacuum that health care professionals will face discrimination, because Bill would not legally protect conscience rights. This type of situation would not only harm a society but would also harm a health care system. Health care professionals expressed that they would have to make the difficult decision to leave their profession if we fail to protect freedom of conscience rights.
Dr. Sephora Tang, who is an Ottawa psychiatrist, shared with the Senate committee on Wednesday her concerns about the lack of protection in Bill .
It is very difficult for me, as a professional physician and psychiatrist, to say that some of my patients I should be referring to medical aid in dying.... With the whole issue of conscientious objection, it's almost as though my professional judgment has been stripped.... If we do not have legislation that allows me to practice according to my conscience, this time that I have with my patients to work with them will be truncated, and I feel to their detriment and to the detriment of the families and friends of the patient that are left behind, and also to the individual health care professionals and the team members who work with this patient as well.
Dr. Matthew Meeuwissen, an emergency doctor from Stony Plain, Alberta, also expressed this opposition to medical assistance in dying. He said that the act of helping a patient to find a physician to assist in suicide is nothing short of complacency in killing vulnerable people. He said, “As a physician, I am not aware of any medical condition where killing my patient is an effective treatment”.
There are many more health care professionals who hold similar views and face ultimately between choosing for their conscience or their work. These health care professionals journey with those who are suffering and sick every day. They help patients at the end of life but object to ending their life.
The Hippocratic Oath rightly recognizes this element of our nature. Health care professionals take an oath stating they will remember that there is art to medicine as well as some science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.
Freedom of conscience for all health care professionals must be protected. Hope, a constituent in my riding, sent me an email recently stating:
Conscience Rights are a protected freedom under the Charter of Rights and should NOT be violated. Saying this it should be clearly stated that healthcare providers can refuse to perform or refer for physician assisted suicide on the grounds of conscientious objections. Do not trammel the rights of one group for the perceived rights of another.
A majority of Canadians agree with Hope. A recent Nanos Research poll showed that 75% of Canadians agreed that doctors should be able to opt out of offering assisted dying, compared with 21% who disagreed. Even the Canadian Medical Association noted that approximately 70% of Canadian physicians do not want to participate, directly or indirectly, in assisted suicide.
Freedom of conscience rights must be given a priority, as in the charter. The government should strengthen Bill by adding codified protections for conscience rights as anticipated in Carter, similar to the recognition of conscience and religious rights in the Civil Marriage Act. This would be accomplished by adding an offence to intimidate or coerce health care professionals to take part, directly or indirectly, in assisted suicide or euthanasia.
The government should also make it an offence to dismiss from employment or to refuse to employ health care professionals if they refuse to take part, directly or indirectly, in assisted suicide or euthanasia.
If freedom of conscience rights for health care professionals is not protected, the rights of a few will trample the charter rights of those who have dedicated their lives to helping us heal and live healthy lives.
I hope the government will support this motion and ultimately act to legislate real protection for health care professionals on medical assistance in dying.
Mr. Speaker, I am speaking today to compel the House to ensure the protection of the freedom of conscience of a medical practitioner, nurse practitioner, pharmacist, or any other health care professional who objects to taking part, directly or indirectly, in the provision of medical assistance in dying.
I would like to introduce everyone to Os Guinness, an author, a social critic, and a member of RZIM speaking team. The great-great-great-grandson of Arthur Guinness, the Dublin brewer, he was born in China in World War II, where his parents were medical missionaries. A witness to the climax of the Chinese revolution in 1949, he was expelled with many other foreigners in 1951 and returned to Europe, where he was educated in England. He completed his undergraduate degree at the University of London and his doctorate in philosophy in the social sciences at Oriel College in Oxford. I say that to give him the credibility he deserves.
He has said, “Freedom of conscience has always been understood as the first right”. In a world ravaged by conflict, there is real threat to human dignity. Dr. Guinness proposes that the way forward is through engaging in the civil public square, where freedom of conscience and religion are promoted for all people, where we can disagree respectfully, where the right to free expression by all human beings is recognized.
In Canada, everyone has freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms. No one has the right to demand all services from all providers in all circumstances.
The Coalition for HealthCARE and Conscience represents more than 100 health care facilities, with almost 18,000 care beds and 60,000 staff, and more than 5,000 physicians across our country. They represent several like-minded organizations committed to protecting conscience rights for health practitioners and institutions.
Members of this coalition include the Catholic Archdiocese of Toronto, the Christian Medical and Dental Society of Canada, the Catholic Organization for Life and Family, the Canadian Federation of Catholic Physicians' Societies, the Canadian Catholic Bioethics Institute, Canadian Physicians for Life, and the Catholic Health Alliance of Canada. I echo their concern that Bill does not protect the conscience rights of health care workers or facilities that morally object to performing or referring for what is being referred to as medically assisted death.
No other foreign jurisdiction in the world that has legalized euthanasia or assisted suicide forces health care workers, hospitals, nursing homes, or hospices to act against their conscience or mission or values. Coalition member and executive director of the Christian Medical and Dental Society of Canada Larry Worthen says, “These conscience rights must be preserved”, and I agree.
A recent Nanos Research poll found that 75% of Canadians agree that doctors should be able to opt out of offering assisted dying, compared to 21% who disagree. The Canadian Medical Association indicates that approximately 70% of Canadian physicians do not want to participate in any way in assisted death and euthanasia, and 30%, approximately 24,000 Canadian physicians, would participate.
In no way should a physician, nurse, pharmacist, or any other health care professional be intimidated or coerced into taking part directly or indirectly in assisted suicide or euthanasia. In the same way, neither should they face dismissal or discrimination in hiring for exercising their freedom of conscience and religion under section 2 of the Canadian Charter of Rights and Freedoms.
Like the Coalition for HealthCARE and Conscience, I support the right people have to accept, refuse, and/or discontinue the use of life-sustaining treatment and allow death to occur. I, too, also hold strong moral convictions that it is never justified for a physician to help to take a patient's life under any circumstances. Our health care workers journey with those who are sick and suffering every day and they will continue to do so in a caring and compassionate way. They help patients at the end of life. What they object to is ending their lives.
As I indicated in my first speech in the House of Commons on Bill , we need to and can significantly reduce the number of people who see death as the only possible option to end their suffering by improving medical, palliative care, and social services. As a small but mighty example, I learned at the World Red Cross Day celebration here on the Hill that my local Red Cross received ongoing funding to continue a seniors visitation program for the lonely and elderly through the new horizons for seniors program. When they are not called out to deal with a disaster, these amazing volunteers invest in the quality of life of our elderly.
“Our worth as a society is measured by the support we give to the vulnerable,” says Worthen. “We need increased access to palliative care, chronic disease and mental health services to help individuals who are suffering across the country.”
I truly believe that we have made a very grave error in putting Bill ahead of a significant palliative care initiative.
I am proud to stand here today, on behalf of my own physician in my hometown of Esterhazy. She is an amazing doctor who takes deep personal interest in her patients. She has invested in continued and specialized training to care for the elderly. I am so grateful that she is my father's physician, who has Alzheimer's. Under no circumstances should she, or any other doctor, be required to assist an individual in taking their own life.
I am standing here today, as a member of Parliament in the Government of Canada, to advocate on behalf of the rights of health care providers. As legislators, our first responsibility is to advocate for the vulnerable and for conscience protection. This is foundational in the Canadian Charter of Rights and Freedoms. Without this protection, we lose our freedoms and our democracy. We have a responsibility to respect the conscience rights of our physicians and health care professionals who choose not to participate in assisted suicide and euthanasia.
Mr. Speaker, I rise in this House to address the opposition motion concerning the conscience rights of health care professionals.
The motion directly relates to Bill , a historic piece of legislation that would create a legislative framework governing the provision of medical assistance in dying.
I call this legislation historic because with its enactment, Canada would not only become one of the first jurisdictions in the world to permit medical assistance in dying, but also, even among this small group of countries, we would be one of the first that does so in the context of a federal system of government.
I am mindful of how important the issue of conscience rights is to health care professionals, as well as many groups who have made representations on their behalf.
In the Carter case, many of the intervenors who participated in the litigation raised the issue of conscience rights, including, as noted by the Supreme Court of Canada in paragraphs 130 and 131 of its decision, the Canadian Medical Association, the Catholic Civil Rights League, the Faith and Freedom Alliance, the Protection of Conscience Project, and the Catholic Health Alliance of Canada.
As the Supreme Court said clearly in its decision, nothing in the court's declaration would compel a physician to provide medical assistance in dying.
Following the Carter decision, the theme of conscience rights featured prominently in the consultations conducted by the federal external panel. Many individuals and organizations made submissions and participated in this process to ensure their perspectives on conscience rights were heard.
The panel's final report noted that while the medical profession is divided on how exactly conscience rights should be protected without compromising patient access, stakeholders were unified in the view that physicians' and other health care professionals' conscience rights must be respected and that those who choose not to participate must not face negative repercussions.
The report of the provincial and territorial expert advisory group which was released in December of last year shows that it also received significant input about, and carefully considered, the conscience rights issue.
When the special joint committee of the House of Commons and the Senate conducted its own study of medical assistance in dying in January and February of this year, conscience rights continued to be front and centre. Numerous witnesses raised it, and the issue was addressed in the committee's report.
Following the introduction of Bill , I have closely followed the Standing Committee on Justice and Human Rights' study of the proposed legislation, as well as the Senate's pre-study, which have both heard significant evidence from many people and organizations about conscience rights.
For example, I am mindful that the House of Commons committee stakeholders were from various diverse backgrounds who held a broad spectrum of views on medical assistance in dying generally supported conscience rights. Individuals and organizations motivated by their faith traditions, including the Evangelical Fellowship of Canada, the Canadian Council of Imams, the Centre for Israel and Jewish Affairs, and Cardinal Thomas Collins all spoke eloquently about why the legalization of medical assistance in dying, which is intended to respect the charter rights of eligible patients, should not have the uncomfortable consequence of violating the charter rights of health care professionals.
Representations from professional organizations, such as the Canada Medical Association, the Canadian Pharmacists Association, the Canadian Society of Palliative Care Physicians, and the Canadian Medical Protective Association also emphasized the need for conscience rights protections not only through legislative measures, but also via a system that would ensure that the patient is not abandoned in his or her hour of need, and would connect the patient with willing providers.
Not everyone agrees on all issues that are posed in medical assistance in dying; however, there is general consensus that the conscience rights of health care practitioners must be taken into consideration as we introduce this practice into our society.
As the Minister of Justice and Attorney General of Canada, I want to express my sincere appreciation to each and every one of these persons and groups, as well as the members in this House who have been so vocal on the issue of conscience rights for contributing to a national conversation on medical assistance in dying.
I am keenly aware that it takes significant time, energy, and effort to prepare and present submissions, whether it is before the courts, consultative bodies, or committees. Rest assured their voices have been heard.
In a moment I will turn to the issue of how the government's approach to medical assistance in dying reflected in Bill respects the conscience rights of health care professionals and respond to the member opposite's motion.
First I want to take the opportunity to say a few words about the bill and how it respects all rights guaranteed under the charter, including conscience rights. I will say more about this when the bill is reported back by the committee for third reading debate.
At the Standing Committee on Justice and Human Rights as well as in the Senate as part of the legal and constitutional affairs committee's pre-study of the bill, parliamentarians heard from some who have expressed concerns that Bill falls short of complying with the charter. At the same time, we have also heard from other constitutional experts who have said that given the recent developments in the law, the bill is charter and Carter compliant.
Given all these diverse opinions, the key takeaway here is that nobody has a monopoly on interpreting the charter and nobody can predict with certainty whether a piece of legislation will some day be considered by the courts. Furthermore, many of those who seem certain that this law will be struck down do not acknowledge that Bill is not the same as the previous criminal prohibition that was struck down.
Let me be clear. This proposed legislation permits medical assistance in dying to an overwhelming number of those who are expected to seek it, namely, those who are nearing or who are at the final stage of life. Data from places where assistance in dying is lawful bear this out. Make no mistake that Bill would provide access to the vast majority of Canadians who would seek to access it.
At the same time that Bill permits access to the majority of those who would want it, it would not allow any and all Canadians to access it. It limits access in accordance with the legislative objectives that are stated in the preamble of the bill. These new legislative objectives were not part of the old law. Accordingly, the new legislative objectives change the charter analysis which has not been acknowledged by those who say that Bill C-14 will be struck down.
Even the justices of the Supreme Court themselves cannot pronounce on the constitutionality of legislation until they have a real case before them that is supported by a fulsome evidentiary record and submissions from counsel. This is especially true on issues as complex and sensitive as medical assistance in dying with so many different compelling, competing and important interests.
At the end of the day, the responsibility rightly falls to Parliament to enact a law that is consistent with the charter and which meets the needs of Canadians, striking a fair balance between all the diverse interests that are at stake. As the Supreme Court stated in Carter, any legislative regime will be shown a high degree of deference by the courts. In the context of medical assistance in dying, conscience rights raise distinct and nuanced constitutional issues.
First and foremost, it is critical to note that since the repatriation of the Constitution in 1982 and the enactment of the Charter of Rights and Freedoms, all statutes, whether they are adopted at the federal or provincial and territorial levels, must comply with the charter.
Indeed, as trite as it sounds, we must remember that charter rights do not come from provisions in a given law or regulation. They come from the charter itself. Nothing is gained by having an ordinary statute confirm or affirm charter rights. It is a recognized principle of statutory interpretation that courts should endeavour to interpret and apply laws in a manner that is consistent with the charter and its values.
Whether or not Bill or any other legislation that is proposed says something specific about charter rights, including conscience rights, it does not mean that such rights are not protected. On the contrary, as the charter is part of our Constitution and the supreme law of the land, such rights are always protected and can only be limited in accordance with the Constitution, such as under section 1 of the charter which allows for reasonable limits that can be demonstrably justified in a free and democratic society.
Therefore, strictly speaking, legislation does not need to restate rights that are already guaranteed in the Constitution, and nothing is gained in terms of charter protections by restating it from a legal point of view. However, in terms of public understanding, I do appreciate that legislative statements referring to charter rights can alleviate the comfort level of those who are affected by the law. I will say more about that in a moment.
Second, but equally important, legal consideration that informs how we must approach conscience rights is the other pillar of our constitutional framework, which has been with us since Confederation. Of course, I am referring to the division of powers between the federal and provincial governments.
When it comes to medical assistance in dying, the Supreme Court of Canada in Carter recognized that the division of powers was implicated when it said, in paragraph 53:
Health is an area of concurrent jurisdiction [and that] aspects of physician-assisted dying may be the subject of valid legislation by both levels of government, depending on the circumstances and the focus of the legislation.
In other words, while health might be, broadly speaking, an area of concurrent jurisdiction, the specific context still matters.
With respect to medical assistance in dying, the major federal authority to legislate in respect of health comes from the criminal law power. That power is concerned with preserving public safety as well as conveying norms about what conduct should attract the most serious sanctions available in our society.
In respect to medical assistance in dying, the main federal role is to ensure that legalization of the practice takes place in a manner that minimizes the risks to the vulnerable and that supports other crucial societal objectives, such as affirming the inherent value of all Canadians' lives, supporting suicide prevention, and promoting the maintenance of a just and peaceful society more generally. This is why Bill creates criminal law exemptions for medical assistance in dying so that health care providers can lawfully participate in the termination of human life while maintaining criminal prohibitions against such conduct in other situations.
In contrast, while the federal government administers some aspects of health care, for example, to first nations who have not assumed responsibility on reserve, and federal prisoners, provinces have primary responsibility for the delivery of health care and the regulation of professions, including health care professionals, such as physicians, nurses, pharmacists, and others. They also have responsibility for health care institutions, including hospitals. This is because things fall under matters either specifically addressed in section 92 of the Constitution Act of 1982, or are in respect of other provincial heads of power, including matters of a local or private nature in a province.
Federal laws, including amendments to the Criminal Code and other statutes, as proposed in Bill , must respect this division of powers and not unduly interfere in provincial jurisdiction. To do so would be unconstitutional. It is for this reason that we as parliamentarians must be honest with Canadians about the limits of our jurisdiction and acknowledge that it would not be appropriate, for example, to attempt to directly regulate what hospitals or provincial professional regulators can or cannot do with respect to conscience rights. To do so would be misleading to health care providers and to Canadians.
With that said, this does not mean that we cannot address conscience rights in Bill . It just means that we have to do it in a manner that respects the Constitution.
As introduced, the preamble of Bill included language about respecting the convictions of health care providers. However, it was obvious that many people did not find that reference in the preamble to be adequate and were seeking more precision.
Of course, our government wants all Canadians to have comfort, as much as they can, with Bill . Therefore, I am pleased to report, as has been reported today, that members of the Standing Committee on Justice and Human Rights worked diligently and collaboratively to amend Bill to indicate Parliament's intent with respect to conscience rights, while also ensuring compliance with the division of powers.
The committee amended the preamble to specifically recognize that everyone has freedom of conscience and religion under section 2 of the charter and that nothing in the act would affect the guarantee of freedom of conscience and religion. The committee also amended the body of the bill so that in the most critical section of the Criminal Code, that law would state, “For greater certainty, nothing in this section compels an individual to provide or assist in providing medical assistance in dying.” I certainly welcome these amendments.
There are a few important features of the amendment to the body of the bill that I believe are worth highlighting.
First, it is prefaced with the expression “for greater certainty”, which is legally important because, as I mentioned earlier, it helps remind the reader that the source of conscience rights is in the charter, not the provision that would be inserted in the Criminal Code.
Second, the new provision explains that nothing compels an individual. That language clearly communicates that while it is true that Bill would remove the criminal prohibition against medical assistance in dying in certain defined circumstances, such a change to the Criminal Code would not impose any positive duty that did not exist in the law before. It is not this change to the Criminal Code that would make medical assistance in dying a form of health care. It would only open the door to it. It is also consistent with the framework for medical assistance in dying put forward in Bill C-14, which is, as I have mentioned, a new set of criminal law exemptions from various offences that would now permit conduct that used to be illegal, in order to give effect to the Supreme Court's ruling in Carter. We must remember that what the Carter ruling did was to find those criminal prohibitions to be unconstitutional.
Third, the language in the new provision specifically indicates that nothing would compel an individual to provide or participate in providing medical assistance in dying. As all members are aware, charter rights belong to all Canadians, not just physicians, nurse practitioners, or pharmacists. By using the word “individual”, the provision is clear that the bill would not impose any new positive duty on anyone, including but not limited to those health care professionals who provide or participate in providing medical assistance in dying. At the same time, this new provision added by the committee would not interfere with the division of powers, nor would it encroach on the jurisdiction of provincially regulated entities.
In terms of working together, since the Carter decision, one thing that we have consistently heard from many individuals and organizations who have spoken about conscience rights is the need for there to be real, practical solutions to the problem of palliative care. The has emphasized, and I agree with her, that non-legislative measures can act in tandem with Bill to ensure the charter rights of everyone involved, and that they can be respected.
This is why the government has announced its commitment to work closely with the provinces and territories to put in place a system that will connect willing providers to patients who qualify for medical assistance in dying. This is in line with the long-standing Canadian tradition of co-operative federalism, which is about each level of government working together while also respecting their respective jurisdictions. I am confident that this system will meet the access needs of Canadians and play an important role in ensuring that health care professionals can continue to care for their patients in a manner that is consistent with their beliefs and their values.
The motion from the member opposite is well intentioned. It speaks to rights and values that are important to many Canadians, particularly as they pertain to medical assistance in dying. However, I cannot support it. As amended, Bill would appropriately respond to all the important considerations that surround medical assistance in dying, including enabling autonomy for persons who choose a peaceful death, protecting vulnerable persons, affirming the value of the lives of all Canadians, and respecting the charter rights of health care professionals. The bill would respect these rights in a manner that is consistent with our constitutional framework. Unfortunately, the motion from the member opposite would fail to meet a similar balance, and I will not be supporting it.