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View Arif Virani Profile
Lib. (ON)
View Arif Virani Profile
2019-05-29 17:49 [p.28242]
Madam Speaker, it is a pleasure to speak today to Bill C-418, the protection of freedom of conscience act. The bill proposes to create two new Criminal Code offences, an “intimidation offence” as well as an “employment sanctions offence”. Those offences would seek to protect health care professionals' freedom of conscience by prohibiting the use of intimidation to compel practitioners to provide medical assistance in dying and by prohibiting employers from dismissing practitioners for refusing to take part in medical assistance in dying.
Canada's medical assistance in dying legislation came into force almost three years ago, in June 2016. It allows adults who are suffering unbearably while on a trajectory towards death to seek the help of a medical practitioner or nurse practitioner in choosing a more peaceful death. Recently released data from Health Canada's fourth interim report reveals that as of October 31, 2018, more than 6,700 Canadians have received medical assistance in dying.
Addressing this issue and any matter of constitutional law in the House is always a pleasure for any lawyer in the House, and particularly for me who practised in this area for 15 years prior to entering the chamber.
Medical assistance in dying has been and continues to be a complicated and contentious issue. That is a given. It raises questions in relation to fundamental values about how we want to live and die as autonomous individuals, how vulnerable individuals must be afforded protection under the law and also about how we relate to each other as members of Canadian society.
The complexity of this issue warrants thorough reflection on the many points of view that inform it. Even within this place, different sets of values inform different positions taken when we debated former Bill C-14 at length.
For instance, as a result of the rich debate that took place, the legislation included a requirement that three independent studies be completed on topics that were particularly complex and beyond the scope of the former Bill C-14, namely, medical assistance in dying for mature minors, advance requests and requests where the sole underlying medical condition is a mental disorder.
The Council of Canadian Academies undertook the monumental task of canvassing the available evidence on these questions and produced three in-depth reports that will continue to inform the dialogue between the public and policy makers. Importantly, the reports themselves set out a variety of points of view among experts on these three issues.
Many members would also know there is ongoing charter litigation right now in the courts in Canada involving the eligibility criteria set out in the medical assistance and dying amendments to the Criminal Code that were passed three years before. These are ongoing matters.
It would be inappropriate to comment on them specifically, but I mention their existence to highlight the different fundamental values that medical assistance in dying implicates and that the legislation seeks to reconcile: supporting individual autonomy, protecting society's most vulnerable individuals and protecting broader societal values that go beyond the individual desire to control their own death, such as the equality of all lives and the prevention of suicide.
We have seen in the opening comments of this debate the issue of the reconciliation of the charter rights held by the practitioners whose rights are being espoused by the member opposite from Cypress Hills—Grasslands, and also by the patients in the medical system, as was raised in the question by the member for Don Valley West and the member for Victoria.
As these complementary values underpin the particular Criminal Code exemptions that Parliament enacted to permit medical assistance in dying, they also play out on the ground. Indeed, just as Canadians in general may have different points of view about what medical assistance in dying should look like in Canada, so do the persons who are directly involved in this new practice, namely, our health care professionals, and in particular, the medical and nurse practitioners who are permitted to provide medical assistance in dying.
It is to be expected, and indeed Parliament heard, that this diverse group of professionals holds equally diverse views on medical assistance in dying. Our government firmly believes that medical and nurse practitioners, as well as other health care professionals involved in a patient’s care team, should not be forced to participate in the provision of medical assistance in dying.
Providing medical assistance in dying is a gesture with the most serious of consequences. Some health care practitioners view it as an important part of their practice that relieves a patient’s intolerable suffering when approaching death. Others view it as contrary to their conscience, religious beliefs or their professional role. Other health care practitioners might support the availability of medical assistance in dying in principle but simply not wish to be involved in the practice themselves. Our government supports and respects all of these different viewpoints.
It is crucial to note that in Canada the legal framework for medical assistance in dying is primarily one of criminal law. Parliament enacted careful exemptions to the offences of homicide and aiding suicide. This means that medical assistance in dying is permitted, but no one is compelled by the criminal law to provide it.
With the utmost clarity in this regard, the House of Commons Standing Committee on Justice and Human Rights adopted an amendment to what was then Bill C-14, adding a new subsection 241.2(9) to the Criminal Code of Canada that clearly states that nothing in the medical assistance in dying provisions compels health care professionals or practitioners to participate in medical assistance in dying.
It is also critically important, since we are debating constitutional law, to keep in mind that paragraph 2(a) of the charter protects freedom of conscience and religion and guards against unjustified government interference in one's religious beliefs and freedom of conscience. We know that. The law reflects that. The Carter decision of the Supreme Court of Canada incorporated that. I will read part of paragraph 132 of the majority decision in Carter, which says that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying”. Those words entered Bill C-14 and were further strengthened by the amendment proposed by the justice committee and voted on in Parliament.
Our government is mindful that the availability of medical assistance in dying in Canada may cause tensions in professional settings among medical and nurse practitioners who hold different views on this very topic. Strained relationships with colleagues were noted by the physicians who participated in a 2018 study published in the Journal of Pain Symptom Management, including physicians who are willing providers of medical assistance in dying but who work in environments that are predominantly opposed to medical assistance in dying. This example highlights the unique challenges that medical and nurse practitioners might face when they work in an environment with a majority or institutional view of medical assistance in dying that is different from their own.
In addition, eligible patient access to medical assistance in dying has to be reconciled with practitioners' conscience rights. This is the reconciliation that was raised in the context of this debate and in the Carter decision, and that has been reconciled within the framework of Bill C-14 as passed.
Importantly, provinces and territories have responsibility over the provision of health care and the regulation of professionals within their jurisdiction, and they face this complex task. In a context where we are debating constitutional law, it is important not just to look at the charter but also at the division of powers in the Constitution Act of 1867. When we are talking about regulating aspects of physicians in this country, that is germane to the jurisdiction of the various provinces mentioned in some of the responses by the member for Cypress Hills—Grasslands.
At the federal level, the Minister of Health has recently put in place regulations establishing a permanent monitoring regime for medical assistance in dying. The regime came into effect on November 1, 2018. It will gather valuable data about written requests for medical assistance in dying and the patient making this request, but also about the reasons why a medical practitioner who received a written request referred the patient or transferred their care to another practitioner, including whether it was because providing medical assistance in dying or assessing someone for eligibility would be contrary to their conscience or religious beliefs.
National, consistent data about the number of requests for medical assistance in dying that are transferred because of a practitioner’s beliefs will inform Canadians about the breadth of this issue.
In addition, the medical assistance in dying legislation itself provided for a five-year parliamentary review of all of its provisions and the state of palliative care in this country. This review could begin as of June 2020. It will no doubt be informed by the comprehensive reports produced by the Council of Canadian Academies and any other available evidence about the Canadian experience, including that of health care practitioners involved in or affected by medical assistance in dying.
I wish to reiterate our government's respect for health care professionals' diverse points of view and beliefs about medical assistance in dying. We know that they hold their patients—
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