Speech in Senate by Mobina Jaffer (June 2 2016)

The speech explains in simple language the problems senators are facing with Bill C-14.   It is done very well.  It explains the Charter and Cartier.


June 2, 2016

Yesterday I spoke in the Senate Chamber at 2nd reading of Bill C-14 on medical assistance in dying.

This is one of the toughest bills I have ever worked on.  I would like to share my speech with you.
I look forward to continuing to work with you.

Sincerely,

The Honourable Mobina S.B. Jaffer, Q.C.
Senator for British Columbia

1st Session, 42nd Parliament,
Volume 150, Issue 42

Hon. Mobina S. B. Jaffer: Honourable senators, I rise to speak on the second reading
of Bill C-14. It is the hardest bill that I have ever worked on. I have stayed up many
nights thinking about it and thinking about those who would be affected by this
legislation. My entire life I have fought for the rights of the most vulnerable in our
society. As a senator, I have fought to protect our constitution. Bill C-14 brings
together these aspects.

This issue is deeply personal to many Canadians because we have all lived it in some
way. We all know someone who has suffered intolerably. Maybe it is a co-worker or an
acquaintance, or maybe a distant relative or loved one. We all hold the story of
someone close to us.

Honourable senators, I would like to share with you the story of Elayne Shapray of
Vancouver, British Columbia. She was in an advanced state of decline from secondary
progressive multiple sclerosis. Multiple sclerosis is not terminal, but it causes intolerable
suffering to many. It is a disease that affects more than 100,000 Canadians. Elayne's
condition caused her suffering for several years and left her completely incapacitated.

Elayne was a long-time advocate of medical assistance in dying and offered her
gripping affidavit after the B.C. Court of Appeal overturned the B.C. Supreme Court
ruling in favour of Gloria Taylor and the BC Civil Liberties Association. In the words of
Elayne's husband, Howard: "Elayne had a peaceful and serene passing, surrounded by
friends and family"on May 2.

Elayne was able to apply for an exemption from the Supreme Court's declaration of
invalidity and was afforded dignity in death. Under the restrictive criteria of Bill C-14,
however, Elayne likely would not have been eligible for medical assistance in dying.

Instead, she would have been forced to turn to self-starvation, something that is
beyond cruel, to be eligible.

Honourable senators, I share Elayne's story with you to highlight the importance of this
issue and the care and deliberate consideration that it deserves. As senators, we are
the absolute protectors of the rights outlined in our Constitution. As senators, we must
uphold our responsibility in this matter.

Today, I would like to talk about how medical assistance in dying and the Supreme
Court's decision in Carter are related to the Charter. I would also like to outline how Bill
C-14 restricts access to medical assistance in dying based on the parameters
established in Carter and highlights the need to pass the right law.

Medical assistance in dying addresses the most fundamental of our constitutional rights
as Canadians. Section 7 of the Charter says that each and every Canadian has the right to life, liberty and security of person.  It says that we as Canadians are guaranteed the right not to be deprived of these basic rights except in accordance with the principles ofamental justice.

The Supreme Court's responsibility in Carter was to respect section 7 of the Charter
with respect to sections 14 and 241(b) of the Criminal Code. Section 14 of the Criminal
Code says:

No person is entitled to consent to have death inflicted on him, and such consent does
not affect the criminal responsibility of any person by whom death may be inflicted on
the person by whom consent is given.

Section 241(b) says:

Every one who. . . aids or abets a person to commit suicide, whether suicide ensues or
not, is guilty of an indictable offence. . . .

Honourable senators, Carter is not the first time that the Supreme Court has faced a
challenge on the issue of medical assistance in dying. Before Kay Carter and Gloria
Taylor, there was Sue Rodriguez. In 1993, Ms. Rodriguez, who suffered from ALS, lost
her challenge at the Supreme Court in a 5-4 decision. Between 1993 and 2015, public
attitudes changed and society evolved. Other jurisdictions began to legislate on medical
assistance in dying and positive advocacy by the BC Civil Liberties Association and
people like Gloria Taylor, Kay Carter and Elayne Shapray showed the public that
medical assistance in dying could be dying with dignity. The public and health care
personnel began seeing that medical assistance in dying could be an act of compassion.

If we listen to Canadians on this issue, we can begin to understand that medical
assistance in dying is intended to be compassionate.

The principles of fundamental justice that the Supreme Court once used to deny
medical assistance in dying have evolved. As a result, so did the Supreme Court. On
February 6, 2015, it set out the parameters for which medical assistance in dying
should be allowed in Canada.

Bill C-14 is a legislative response to the delayed declaration of invalidity by the
Supreme Court in its unanimous decision in Carter v. Canada. Bill C-14 falls short of the
standards that the Supreme Court has set and that the public has set on this issue.

The Supreme Court was definitive in Carter. The Supreme Court was unanimous
in Carter.

In its declaration of invalidity, the court says that sections 241(b) and 14 of the
Criminal Code were no longer valid if they prohibited medical assistance in dying.
The court introduced parameters that said medical assistance in dying should be
allowed

. . . for a competent adult person who (1) clearly consents to the termination of life and
(2) has a grievous and irremediable medical condition (including an illness, disease or
disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition.

The Supreme Court went on to add, critically, that "irremediable" . . . does not require
the patient to undertake treatments that are not acceptable to the individual."

This is the language that the highest court in our country used in its landmark and
unanimous decision. This, however, is not what was tabled.

Bill C-14 introduces some parameters and eligibility criteria that are restrictive. Yes, it
says an individual must suffer from a grievous and irremediable condition, but it also
says that an individual must have a ". . . serious and incurable illness, disease, or
disability." It goes on to say that the individual must be in ". . an advanced state of
irreversible decline in capability." Third, the criterion says that the ". . . illness, disease,
or disability or the state of decline that causes an individual enduring physical or
psychological suffering must be intolerable to the individual." Lastly, Bill C-14 says that
an individual is only eligible if ". . . their natural death has become reasonably
foreseeable."

In Carter, there was no mention of incurable. In Carter, there was no euphemism for
terminal illness such as "natural death has become reasonably foreseeable." Yet,
honourable senators, these words were included in Bill C-14. This language creates
eligibility criteria that are restrictive and they do not meet the threshold set by the
Supreme Court in Carter.

I will go on to explain why I believe that the restrictive eligibility criteria found in Bill C-
14 should be replaced with the parameters established by the Supreme Court in Carter.
Bill C-14 involves both legal aspects and medical aspects. On the one side, there is the
legal question. On the other side are the doctors, nurse practitioners and regulators
who have to interpret Bill C-14 once it becomes law.

They are ones who must administer medical assistance in dying. Medical personnel
from Montreal and Vancouver to Yukon and Thunder Bay need to be able to interpret
what "grievous and irremediable"means and act accordingly. Incorrectly interpreting"
Bill C-14 is not an option. Yet, the medical reality will be filled with misinterpretation if
we do not replace the restrictive criteria of Bill C-14 with the language we found
in Carter.

Requiring that an individual suffers from an incurable illness, disease or disability is
restrictive. We heard that, from the medical standpoint, the requirement that conditions
be incurable suggests that patients must seek out and undergo all forms of treatment in
order to cure the disease, even if these are unacceptable to the individual.

The Supreme Court of Canada clearly said that "irremediable"does not require the
patient to undertake treatments that are not acceptable to the individual. Clearly, there
is a disconnect between the Supreme Court's decision and Bill C-14. Requiring that an
individual's natural death has become reasonably foreseeable is restrictive.

The Minister of Justice at our pre-study told us that requiring a person's death to be
reasonably foreseeable provides health care practitioners with flexibility to take into
account all the person's medical circumstances.

Honourable senators, the minister's response at the pre-study stuck with me
throughout the whole process of our pre-study. Yes, it is the lawyers who wrote this
bill, but it is the medical personnel across Canada who will interpret this bill.

I asked Douglas Grant, President of the Federation of Medical Regulatory Authorities of
Canada, how his organization will interpret "reasonable foreseeability" He was fairly
straightforward. He told me he doesn' know. He then went on to say he worries that if
this language remains in Bill C-14, there will be a variety of interpretations from
province to province, health authority to health authority, and physician to physician.

This, honourable senators, is how many people in the health care sector feel about Bill
C-14. The language of "reasonably foreseeable"does not appear in the medical lexicon.

Health care personnel were looking for clarity. They were looking for guidelines on how
to move forward. What they got instead was inconsistency and confusion.

Honourable senators, our most important responsibility moving forward is to ensure
that Bill C-14 is the right bill for Canadians. We must ensure that it protects the rights
and freedoms of all Canadians. It is essential for parliamentarians to give it the
appropriate amount of time, effort and rigorous study that it deserves.

If Bill C-14 does not pass by June 6, there will be no federal law governing medical
assistance in dying. This does not mean that there will be a massive void in terms of
safeguards, as the government has suggested. The colleges of surgeons and physicians
in all the provinces and the Government of Yukon have established considerable
regulations that outline eligibility criteria and procedural safeguards. Nunavut and the

Northwest Territories are currently working on regulations, and they will also have them
in place by June 16.

Honourable senators, I have provided all of with you a map of Canada that sets out,
right across the country, what regimes exist in each province. Yes, a federal law is
ideal, but we must stay true to our role. We must give Bill C-14 the sober second
thought it deserves. Expediency absolutely should not take precedence over accuracy.
 
An inadequate Bill C-14 means that someone like Louise Laplante of Quebec is not
helped with medical assistance in dying. Louise passed away on March 13. One of the
most emotional times during our pre-study was when her daughter, Léa Simard,
showed tremendous courage in telling us about her mother. Léa offered emotional and
gripping testimony of how the restrictive nature of Quebec's assisted dying bill, which
requires a terminal illness, made her mother, Louise, ineligible. Louise was not offered
death with dignity. Instead, she was forced to starve herself and suffer cruelly and
intolerably. Under Bill C-14, people like Louise would not be treated any differently.
They would not be able to find peace and serenity, and they would not be eligible.

Honourable senators, we should not sacrifice our duty for expediency. As I conclude, I
ask you to look forward.

Honourable senators, all of you here know that I am practising Muslim. From a young
child, I was taught that death arrives when your time is over in this world, and you are
not to hasten death by doing something like committing suicide or taking tablets. It is
when the Creator is ready for you to die that he will accept you. All my life, until this bill
came in front of us, I believed that I will live here as long as my journey expects me to
live. I can make that choice. Nobody is asking me to do anything differently, and I
personally will go with my religious beliefs.

Honourable senators, in the last few weeks since we have had this bill before us, I have
had to look inside and say, "I am a practising Muslim, but my country has given me this
greatest privilege of being a legislator." As a legislator, I am a leader. Sometimes people
follow you; sometimes they have to be followed.

May I have five more minutes?

Hon. Senators: Agreed.

Senator Jaffer: Sometimes they follow you; sometimes we have to ask them to follow
us. We certainly listen to people. To all the senators in this place, I say we are leaders.

Whatever our personal beliefs — and I have opened up mine; for me, my personal
belief is that I will stay on this earth as long as the Creator wants me. That's my
personal belief. But as a legislator, I believe I have to listen to Canadians, I have to
look at the Charter, and I have to rise beyond my personal beliefs.

It has taken absolutely everything I have — I think it has aged me 10 years — to
understand that, as a legislator, I have to protect the most vulnerable and make sure
they die with dignity.

Thank you.

mobina.jaffer@sen.parl.gc.ca