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Speech in Senate Chamber: Senator Cools speaks to Bill C-14, An Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying)

Honourable senators, I speak to third reading, of Bill C-14, An Act to Amend the Criminal Code and to Make Related Amendments to Other Acts (Medical Assistance in Dying).   This Bill is the new Liberal Government’s response to the Supreme Court’s judgment in Carter v. Canada (Attorney General).  I thank new Attorney General Wilson-Raybould and Health Minister Dr. Philpott, for their fine efforts to put this Bill of such magnitude in a short time.  Sadly, for nine of the twelve months of the Supreme Court’s one year suspension of its Declaration of Invalidity,  the previous government took little action to put before us, the Commons House and the Senate, in the Court’s words, “legislation consistent with the constitutional parameters set out in these reasons.”  Last January 15  the Court granted the Attorney General a four month extension of its Declaration to June 6.  The issues before us are weighty and ponderous matters of life and death, end of life, and termination of life.  The Supreme Court having considered Criminal Code sections 241.(b) and 14.,  concluded  that they were void insofar as they prohibit  physician assistance to end human life.  The Court also considered whether these two Criminal Code prohibitions were consistent with the 1982 Charter of Rights and Freedoms Section 7., and ruled they were not.  Section 7. says:

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Honourable senators, in their reasons for judgment in Carter, the Court wrote, at paragraph 126:

[126]  We have concluded that the laws prohibiting a physician’s assistance in terminating life (Criminal Code s. 241(b) and s. 14) infringe Ms. Taylor’s s. 7 rights to life, liberty and security of the person in a manner that is not in accordance with the principles of fundamental justice, and that the infringement is not in accordance with the principles of fundamental justice, and that the infringement is not justified under s. 1 of the Charter.  To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982. It is for Parliament and the provincial legislatures to respond, should they choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.   

On its remedy, the Court said, at paragraph 127:

[127]  The appropriate remedy is therefore a declaration that s. 241(b) and s. 14 of the Criminal Code are void insofar as they prohibit physician assisted death 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.  “Irremediable,” it should be added, does not require the patient to undertake treatments that are not acceptable to the individual.  The scope of this declaration is intended to respond to the factual circumstances in this case.  We make no pronouncement on other situations where physician-assisted dying may be sought.

 

Colleagues, in 1993 in Rodriguez v. British Columbia (Attorney General) the Supreme Court previously ruled on assisted dying. The Court’s five judges majority found that these same Criminal Code sections did not violate the Charter’s section 7, and upheld them.  Bill C-14 is wholly new, uncharted ground that is the medical profession’s assistance to administer lethal substances to cause death for Canadian persons who want it.  This grave matter abounds in large, not easily resolved legal, moral, and ethical questions.  The wilful termination of human life is a proposition that jolts our legal and human sensibilities, and invokes unease.  This gravity is enlarged by the role that the Court and this Bill have assigned to medical and nurse practitioners, which could foster mistrust about the members of the most esteemed medical profession, many of whom are quite anxious.  I ponder the frequent use of the new phrases “physician assisted suicide” and “medically assisted death.”

Honourable senators, now to these Criminal Code sections 241.(b) and 14., that the Supreme Court has declared void.  Section 241.(b) says:

            241.   Every one who  

(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

Fourteen years is harsh, exceeded only by a life sentence.  Section 14. says:

14. 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.

For centuries, the criminal law held that no human person can consent to be killed.  Not long ago, suicide, felo de se, was a criminal act by the Criminal Code section 225. which said:

225. Every one who attempts to commit suicide is guilty of an offence punishable on summary conviction.

Difficult to prosecute the dead, this section was repealed by the 1972 Criminal Law Amendment Act and brought relief for living relatives of any deceased.

Honourable senators, since June 6, Criminal Code section 241.(b) and  section 14. are void quote, “insofar as they prohibit physician assisted death for a competent adult person.” By Carter, the Supreme Court had set aside centuries of British common law and Canada’s Criminal Code, codified in 1892, that protected the lives of human persons, described in moral philosophy as the sanctity of human life.  For centuries, the cast of mind of the law and the courts have upheld this sanctity, as did the medical profession.  I uphold the sacred and the need for the sacred in the souls and psyches of human beings.  Life was always seen as the sacred grant to us from an Almighty Creator, the Abrahamic God, Allah or Jahweh.  In his Commentaries on the Laws of England, learned seventeenth century jurist William Blackstone, wrote,at page 125:

Life is the immediate gift of God a right inherent by nature in every individual.  .  .

This sanctity of human life was upheld by the law, the legal profession, and the medical profession’s commitment to human life protection.  Physicians once swore this in their ancient Hippocratic Oath, now not used.  It said partly:

I swear .  .  .  that, according to my ability and judgment, I will keep this Oath and this stipulation  .  .  .  I will follow that system of regimen which, according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous.  I will give no deadly medicine to any one if asked, nor suggest any such counsel;  .  .  .  With purity and with holiness I will pass my life and practice my Art.  .  .  . Into whatever houses I enter, I will go into them for the benefit of the sick,  .  .  .

The esteemed medical profession, physicians and doctors have always abhorred the thought of administering lethal substances.  Many doctors are unclear just why this forbidding duty has been thrust upon them by the Supreme Court, and are rightly apprehensive.  I repeat in Carter, at paragraph 126, the Court ruled that Criminal Code section 241.(b) and section 14. prohibitions:

.  .  .  infringe  Ms. Taylor’s  section 7.  rightsto life, liberty and security of the person.

On June 6, these very sections are void by the force of the Constitution Act, 1982 section 52.(1), that says:

52.(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Honourable senators, I am unable to grasp how our highest right, the right to live, can mean a right to die with medical assistance. There is no right, nor law that can vest one person with a legal duty to end another’s life.  On this, I turn to the great masters of the common law wherein our rights and liberties were born.  These masters guided us for centuries.  I speak of the great seventeenth century lawyer-jurist Matthew Hale and the already cited William Blackstone, whom I shall again cite his Commentaries Book I, The Rights of Persons. That, at page 125:

The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

 

These words sound like our Charter section 7., that :

7.  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

Blackstone says “The right of personal security .  .  . and uninterrupted enjoyment of his life,”  Section 7.  says  “ the right to life,  .  .  .  and security of the person  .  .  .  .”  Both sound like the U. S. Declaration of Independence :

. . . , that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty.  .  .

These phrases sound alike because they are Blackstone’s words.  Our Confederation Fathers, like the Yankees enlisted his rights and liberties.

Honourable senators, Judge Mathew Hale, in his 1736 History of the Pleas of the Crown Volume I, republished by Sollom Emlyn in 1800, wrote, at page 411:

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 murderauit contra pacem domini regis.

The Latin says:

.  .  .  the felonious, willful killing, and murder of himself, contrary to the peace of the lord king.

No person’s interest in their life is absolute.  All people have interests in the lives of their loved ones and fellow humans.  Her Majesty the Queen and her Canadian Crown Ministers, have interests in every Canadian life.  So does God. We should not dwell on the sole consent of the person seeking life’s end.  Family members have a strong interest in the life of the one who seeks to die.  We have always upheld the legal and moral maxim that no person’s interest in their life is absolute.  We are members one of another. As poet John Donne said: 

No man is an island entire of itself;  .  .  .  any man’s death diminishes me, because I am involved in Mankind.

Honourable senators, Dr. Margaret Somerville of McGill University Centre for Medicine, Ethics and Law warns of modernity’s dangers. In her March 3, 2014, Calgary Herald article headlined Somerville: Euthanasia’s slippery slope can’t be prevented, she wrote:

The case against legalizing euthanasia is  .  .  .  difficult to present,  .  .  .  This is because the relevant risks and harms are intangible, inchoate at present, or in the future.  They include risks of abuse of vulnerable people; harm to the ethos and ethics of medicine; to the law’s capacity to enshrine and carry the message of respect for life; to important, shared, fundamental values through which we bond to form society – that we care for each other,  .  .  . and don’t intentionally kill each other;  .  .  . 

Once we cross the clear line that we must not intentionally kill another person, there’s no logical stopping point.  .  .  .

When euthanasia is first legalized, the usual necessary and sufficient justification for breaching that line is a conjunctive justification comprised of respect for individual autonomy and the relief of suffering.  .  .  . 

And if one owns one’s life and no one else has the right to interfere with one’s decisions in that regard,  .  .  .  then, respect for the person’s autonomy is a sufficient justification for euthanasia. That is, the person need not be suffering to have access,  .  .  .  hence the proposal in the Netherlands that euthanasia should be available to those “over 70 and tired of life.”

And once the initial justification for euthanasia is expanded, why not allow some other justifications, for instance, saving on health-care costs, especially with an aging population? Until very recently, this was an unaskable question.  .  .  . It’s anecdotal, but a final year medical student became very angry because I rejected this insistent claim that legalizing euthanasia was essential to save the health-care costs of an aging population.

The practical slippery slope is unavoidable because familiarity with inflicting death causes us to lose a sense of the awesomeness of what euthanasia involves, killing another human being. The same is true in making euthanasia a medical act.

 

Honourable senators, on June 1 here in Senate Committee of the Whole, Health Minister Dr. Jane Philpott said:

.  .  .  Before you today is a transformative legislative framework that we believe is the right approach for Canada.  .  .  .  By including criminal exemptions  .  .  .  it provides Canadians with access to medical assistance in dying.  .  .  .  Medical assistance in dying will be available June 6th  .  .  .  Therefore, medical aid in dying will be legal, but without Bill C-14’s eligibility criteria and safeguards,  .  .  .

 

Studying bills instructs.  It takes us to the drafters’ cast of mind and conceptual framework, and to the bill’s concepts, words, sentences, and clauses, and to the mischief the bill will defeat.  Criminal Code drafting is tough, and has three intentions. To defeat the bad and the deviance that allow evil to flourish, to uphold the good, and, to prescribe, regulate, prosecute, and punish crime.  Bill C-14 was drafted with great care.  I support it, and urge colleagues to do so.  I uphold this Bill’s approach which accords with our ancient caution not to grant, nor vest in any person, a positive power to end another’s life.  The criminal law does not admit of, nor grant anyone such a positive power or right.  Capital punishment has been long abolished on these grounds.  This Bill is ingenious and brilliant.  It upholds the law which has long denied such a positive right by refusing to set out such a power.  It employs the federal criminal law power to protect doctors and other medical professionals, to whom it gives certainty and security of exemption from criminal prosecution.  It sets out some twelve such exemptions to that end.  This Bill upholds the sovereignty of Parliament and our endeavours.  It upholds the Senate, and the Commons as the High Court of Parliament, a court of competent jurisdiction by the Charter of Rights and Freedoms section 24.