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Medical Decisions Facilitation Bill- Second Reading


Medical Decisions Facilitation Bill

Second Reading

On the Order:

Resuming debate on the motion of the Honourable Senator Carstairs, seconded by the Honourable Senator Pépin, for the second reading of Bill S-2, to facilitate the making of legitimate medical decisions regarding life-sustaining treatments and the controlling of pain.—(Honourable Senator Cools).

Hon. Anne C. Cools: Honourable senators, I rise today to speak to Bill S-2, to facilitate the making of legitimate medical decisions regarding life-sustaining treatment and the controlling of pain.

I should like to thank Senator Carstairs for placing this important debate before the Senate. This debate is about serious illness, pain suffering and death. This touches all of us and evokes our sympathy and humanity. This subject matter is weighty and touches our foundational notions of life and of existence itself. This subject interests me, and I regret that I was not permitted to serve on the Special Senate Committee on Euthanasia and Assisted Suicide. Bill S-2 will protect decisions, decision-makers and health care providers, but Bill S-2's protection for their patients is not as clear.

The Hon. the Speaker: Honourable senators, could I ask honourable senators who are presently having conversations to please have them outside of the chamber so other honourable senators can hear the speaker?

Senator Cools: Honourable senators, undoubtedly every human person has a legitimate right to decline or to refuse unwanted medical treatment. Every patient is entitled to decline unwanted medical treatment, but quickly the human mind will leap from the legitimate notion of patients refusing treatment to the illicit notion of euthanasia or doctor-assisted suicide. I wish to draw senators' attention to an exchange on July 5, 1994, at the Special Senate Committee on Euthanasia and Assisted Suicide, between the witnesses and our own Conservative Senator Mabel DeWare. This exchange reveals the short leap from the concept of refusing treatment to the concept of euthanasia. David Brown and Angela Costigan, lawyers from the Toronto Thomas More Lawyers Guild, had spoken to the question of patients' rights to refuse treatment, to allow a disease, a pathology, to follow its natural course. Mr. Brown then addressed the more dangerous proposition that he saw as being, "...whether our law should be amended to allow one person to kill another."

In this exchange, these lawyers had been answering Senator DeWare's questions about whether they believed in a patient's right to refuse medical treatment. Mr. Brown had replied affirmatively, informing that the common-law principles of a patient's right to refuse treatment were well established. The exchange, found at page 12:15 of Committee proceedings was as follows. Mr. Brown said:

That is why we did not include it in the brief, because we saw the more dangerous proposition that would be put forward. It is not that individuals could refuse treatment, but that the law would allow one person to kill another, and that is the radical change we submit should not be written into the law.

Senator DeWare said:

That includes the fact that we have the right to refuse taking chemotherapy, for instance. What we are saying is that we are actually allowing our life to end the way we want it to end, without committing suicide or having someone assist us to commit suicide.

Mr. Brown said:

That is the natural course of the disease. In our view, a situation where a person says, "I know I now have this disease; I will let nature take its course, and I will try and make the best of it during my final weeks or months," is completely different from the law allowing a doctor or some other person to take your life. Society rejects people killing people, which is essentially what doctor-assisted suicide is. It is the termination of one person's life by another person.

Senator DeWare said:

I have a very difficult time with the word "killing." I am not sure which word I would prefer. I guess it is because I do not want to face the facts. It seems to me that killing means we are actually committing murder. I believe that is what we are doing, but not in the same sense.

Miss Costigan asked Senator DeWare:

How could it not be in the same sense?

Senator DeWare said:

If I take a gun and shoot somebody, I am killing them.

Miss Costigan replied:

That is right. You are intentionally taking their life, and if you give them an overdose, you are also intentionally taking their life, but with their consent.

Senator DeWare added:

It is with their consent, and there are possibly other reasons involved, as well. When it has been determined that a person has only a short time to live, do you not think that euthanasia, not assisted suicide but euthanasia, happens all the time?

Mr. Brown then commented on Senator DeWare's questions and attempted to address her discomfort with the word "killing."

Honourable senators, Mr. Brown also told the committee that the concept of unlimited individual right is unknown in Canadian law. He stated at page 12:7:

We have two responses to this principle of individual autonomy. Our first response is that our Canadian legal system has never recognized a principle of unrestricted individual autonomy. It is part of our legal system and tradition that all acts of an individual are subject to some restraint or some limitation for the good of society.

He added:

In particular, our law has never recognized the principle of consensual death.

About the absence of consensual death in the law and the Constitution of Canada, he continued, at page 12:8:

In our submission, that particular principle is a profound principle, one that has been recognized and acted upon in this country for decades. We believe it indicates a profound insight by our law that the killing of any person, even at the person's request, is not simply an isolated act or, in the language of the current debate, an exercise of an individual's autonomy rights. The killing of any person, for whatever reason, is a social act which goes to the very core of our understanding of society and full citizenship in society. As we indicate in section 3.07 of our brief, the frequency, manner and motivation for killing are all matters with social consequences, because the measure of any civilized behaviour is the degree of protection which society affords to human life.

Honourable senators, society has upheld that the taking of a human life is a social act that involves all society. The criminal law reflects this, and has an absolute prohibition to the taking of the life of any person. For this reason, the Criminal Code also has absolutely prohibited the consent of any persons to their own killing. Criminal Code, Section 14, states:

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.

That section articulates that the most fundamental, foundational notion of the Criminal Code is that no person can consent to his or her own killing. Further, the Criminal Code, section 241, prohibits counselling or aiding suicide. That is the position of the law as supported by the weight of statute, jurisprudence, and the moral and legal teaching for centuries. Born of the sixth commandment, "Thou shalt not kill," the Criminal Code's absolute prohibition against killing has been a strong moral deterrent. My concern is that Bill S-2 would end this ancient, absolute prohibition on killing.

Honourable senators, Bill S-2 would amend the Criminal Codeirrespective of any beliefs, assumptions or hope to the contrary that have been entertained here. In exempting certain persons from the Criminal Code, the bill relies on the criminal law power of Parliament. Bill S-2 would overturn the legal and constitutional regime of Canada that has protected the life and limb of all. It would overturn the absolute prohibition of the provisions of the Criminal Code that have stood the test of time.Bill S-2's clause 2 addresses the alleviation of pain by medical treatment that might shorten life. Clause 2, headed, "No offence committed for pain control," states:

No health care provider is guilty of an offence under the Criminal Code by reason only that the health care provider, for the purpose of alleviating the physical pain of a person but not to cause death, administers medication to that person in dosages that might shorten the life of the person.

I repeat, "dosages that might shorten the life of the person," the circumstance known as "hastening" or "accelerating" death. Bill S-2 would compromise these provisions of the Criminal Code, including sections 14 and 226, and even the principles underlying the code itself. Section 226 on acceleration of death states:

Where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause.

An older version of that provision is a lot more clear. The 1892 Criminal Code's section 224 had stated:

Every one who, by act or omission, causes the death of another kills that person, although the effect of the bodily injury caused to such other person be merely to accelerate his death while labouring under some disorder or disease arising from some other cause.

The issue is acts or omissions. Bill S-2 repudiates the Criminal Code and reverses well-established principles fundamental to the structure of criminal law. Further, Bill S-2 legislatively relies on motive, rather than on actions, as the proper mode of writing law. Historically, Canadian and British criminal law has eschewed and rejected definitions of law in terms of motive. Motive is infamously difficult to establish and cannot, like intent, be inferred from a person's overt actions. Bill S-2, as legislation, is proposing that which is not part of the recognized structure of the criminal law, and consequently is legislatively insufficient.

Honourable senators, Bill S-2 would protect from liability those persons who serve patients' wishes to exercise their well-established rights to refuse unwanted medical treatment. In so doing, however, it would take the shortening of life and killing out of the Criminal Code and out of its category of murder. I support wholeheartedly the patient's right to refuse treatment, and I support the need for sound medical practices to effect this. However, I quarrel strenuously with the removal of the absolute prohibition against killing. When its removal claims that it is not amending the Criminal Code, I am even more alarmed.

Honourable senators, I understand and I am sensitive to the great difficulties involved in scripting a statutory provision that would accomplish this purpose, while yet not lending itself to abuse. These difficulties, however, cannot be overcome by defeating the absolute prohibition on the taking of life. They are overcome by adequate and studied drafting, which contemplates the mischief, the evil, which we are trying to cure. Human deviance and deceit are incalculable, and certainly will be pressing against an inadequately drafted legislative proposal. Further, Bill S-2 attempts this, not in the usual legislative method of enacting criminal offences and proscribing the fitting punishment, but instead, as an alternative would create a blanket prohibition against the charge, prosecution, and conviction of an entire class of persons by a proposal unknown to law. That class of persons is health providers. Health providers would receive a blanket immunity and enormous powers, for reasons that neither the bill nor its sponsor has yet told the Senate.

Honourable senators, Bill S-2 is a blanket exemption from all Criminal Code provisions for health care providers in all health care situations, including the home, the hospital and institutions. The Ontario Chief Coroner, Dr. James Young, and the Deputy Chief Coroner, Dr. James Cairns, testified before the Special Senate Committee on Euthanasia and Assisted Suicide. They noted the peculiar risks that lay in some institutions. Dr. Young stated, at page 20:5:

Institutional euthanasia is, to our minds, a serious problem that needs to be looked at and guarded against. Within an institution, there is an even greater chance that the person may not be aware of the decisions being made. The chances of abuse and one person imposing their will on the institution are much greater. It concerns us greatly that we can have situations where people such as Dr. Kevorkian decide that they are...judge and jury, and operate within an institution. They may or may not discuss what they are doing with the people involved.

Honourable senators, I support neither euthanasia nor doctor-assisted suicide, nor would I support any initiative that might attain that result.

Honourable senators, it is well known in law that, "No one has a right to shorten by an hour the life of a human being...." However, doctors and nurses must be protected. Provisions to protect health care professionals must be drafted and enacted without altering the absolute prohibition on taking life, or shortening life, and also without the attendant problems of blanket immunity to those professions from prosecution for any crime whatsoever under the Criminal Code.

In conclusion, I favour support for those doctors and nurses who most nobly and diligently serve sick patients — a group who deserves our best consideration. However, I will not support any opportunity for deviants or would-be deviants in the health care field. The difficult challenge of conceptualizing and drafting a law which does not attract the particular abuse of murder is one that must be met if this chamber will do its job sufficiently, and must be met if senators are equal to the task. This bill is responding to the need of suffering and to the need for action, and is a well-intentioned initiative, but the bill would abandon all antecedent law and principles. At law, one cannot protect life by disregarding the Criminal Code prohibition about the protection of life.

Honourable senators, on patient rights and on the meaning of a human life, senators must confront the important question of the power to grant or deny life, to take or not to take a life and the societal rights and obligations that are owed and due as members of the body politic in respect of the protection of human life. Until recently, even suicide had been a crime. Suicide had been defined as legal self-murder. I uphold that human life is not one's own to dispose of as one sees fit. Human life is social, and every human being has an interest in every other human's life. On the vital question of society's interest in every single life, I should like to leave a quotation from one of the finest jurists on criminal law. I speak of Lord Chief Justice Sir Matthew Hale. In his most excellent book, The History of the Pleas of the Crown, which was printed posthumously, he wrote, at page 412:

No man hath the absolute interest of himself, but 1. God Almighty hath an interest and propriety in him, and therefore self-murder is a sin against God. 2. The king hath an interest in him, and therefore the inquisition in case of self-murder is felonice et voluntarie seipsum interfecit et murderavit contra pacem domini regis.

Honourable senators, in English that means that even suicide is a murder, a cruel murder against the peace of the Lord King or Queen. Every violation of every human being's life is a violation against all of us.

Honourable senators, I am quite prepared to see this bill go to committee for study.

Once again, I thank Senator Carstairs. I think what the honourable senator has been doing is very ambitious. Senator Carstairs is attempting to respond to some very important issues and some very important problems.

Honourable senators, in my view, the bill as it stands falls short. However, I welcome the debate, and I am glad to see that the debate has finally been engaged. Having said that, I look forward to the debate, to the study and to consideration of the bill in committee.

Honourable senators, I know that I frequently take a few positions that in today's communities are described as conservative. However, it is a contradiction in terms to describe me as a conservative. I sincerely believe that one cannot protect life by removing the prohibition that protects life.

I thank you, honourable senators, for your indulgence and your patience.

Hon. Douglas Roche: Honourable senators, would the Honourable Senator Cools accept a question?

Senator Cools: Yes, I will.


Hon. Aurélien Gill (The Hon. the Acting Speaker): Honourable senators, the time set aside for this item on the Order Paper is up. Is the honourable senator granted leave to continue?

Hon. Senators: Agreed.


Senator Roche: Honourable senators, I tried to follow Senator Cools' speech, but I should like her to clarify something for me. Given her reservations, would she vote for the bill on second reading in order to send it to committee?

Senator Cools: Honourable senators, I strongly support the ability and the duty of senators to bring forth initiatives. Quite frankly, I sincerely believe that it is cruel and irresponsible on the part of members to thwart or block individual member's initiatives.

Let me put it this way. I said before that I am prepared to see this bill go to committee and I will actively see that it gets to committee.


The Hon. the Acting Speaker: Honourable senators, I must inform the Senate that if Senator Carstairs speaks now, her speech will have the effect of closing the debate on the motion for the second reading of this bill.

The remainder of this day's Senate Debates are available here.