Proceedings of the Subcommittee to
Update "Of Life and Death"

Issue 6 - Evidence

The Subcommittee to Update "Of Life and Death" of the Standing Senate Committee on Social Affairs, Science and Technology met this day at 2:00 p.m. to examine the developments since the tabling in June 1995 of the final report of the Special Senate Committee on Euthanasia and Assisted Suicide, entitled "Of Life and Death."

Senator Sharon Carstairs (Chairman) in the Chair.

[English]

The Chairman: Today is our sixth day of hearings under our mandate to update the unanimous recommendations of the 1995 Special Senate Committee report on Euthanasia and Assisted Suicide entitled "Of Life and Death". I would remind honourable senators and, most particularly, the witnesses, that this committee is not reopening the debate on assisted suicide and euthanasia. It is dealing strictly with the areas of the report where the original committee made unanimous recommendations. I would ask that everyone bear that in mind as we proceed through the hearings.

Before us today we have three panels. Our first panel is from the Department of Health Canada. We have Carole Bouchard, Manager, Office of Controlled Substances, Therapeutic Products Programme, and Dr. Brian Gillespie, Senior Medical Advisor, Bureau of Pharmaceutical Assessment.

Ms Carole Bouchard, Manager, Office of Controlled Substances, Therapeutic Products Programme, Health Canada: Madam Chair and committee members, I should like to take a few minutes to thank you for inviting staff of the Therapeutic Products Programme to speak with you today. We understand that you have some questions. However, before my colleague Dr. Brian Gillespie and I answer them, I would appreciate your offer to spend a few minutes to provide information to you on the drug review process under the Food and Drugs Act and regulations and on the regime utilized under the Controlled Drugs and Substances Act and its regulations to ensure accountability of those handling drugs with a known or high risk of abuse or misuse. We will touch on the international legislative framework and explain how patients are able to obtain these drugs to treat a medical condition.

Health Canada's Therapeutic Products Programme is the national authority that regulates, evaluates and monitors the safety, effectiveness, and quality of all therapeutic products available to Canadians. That includes drugs, medical devices, blood, tissues, organs, disinfectants and sanitizers. Drugs include pharmaceuticals and biologicallyderived products, both prescription and self-care products.

To market a drug in Canada, the manufacturer must demonstrate the effectiveness, safety and quality of the drug product and provide that information to the Therapeutic Products Programme in the form of a drug submission. That may include providing the results of laboratory work, animal studies and clinical trials. For example, in the case of a new active substance, that is, a substance that has not been previously marketed in Canada as a drug, the manufacturer must conduct a series of scientific trials, which must be accurately recorded and presented to TPP for review. The first pre-clinical phase, which includes laboratory work and animal studies, is intended to explore the drug's efficacy and safety before it is administered to humans. A large portion of possible drugs never makes it beyond that phase.

The next phase involves testing the drugs on humans, through clinical trials. These trials must be approved by ethics committees, and all clinical trial participants are informed about the nature and goals of the study, the potential risks and benefits, and their right to withdraw at any time. Once there is supporting evidence that a drug is both safe and effective, the manufacturer can then move toward the final stage of applying to have the drug approved for use in Canada.

The manufacturer is also required to provide details on the methods of manufacture and the controls that will be used to ensure that the quality of the drug is consistently maintained.

In order to provide information on the proper use of the drug, manufacturers must also submit a product monograph, which details the symptoms and side effects associated with use of the drug, as well as recommended dosages and administration; that document is carefully vetted by the scientists and doctors within the TPP.

The drug review process involves a methodological series of steps taken by scientists and physicians in the various bureaus in the Therapeutic Products Programme to assess all drugs before they are allowed onto the Canadian market. Often TPP will enlist the expertise of a large network of scientific professionals from other regulatory agencies, academia and private practice to aid in the review. The goal of the process is to provide Canadians with the latest in pharmaceutical technology, while adhering to the strictest of standards and ensuring that physicians and patients have as much information as possible on the safety and quality of the product.

If, at the conclusion of the review, the drug has been approved, the TPP issues a notice of compliance, or NOC, which indicates the drug's official approval in Canada, as well as a drug identification number, or DIN, which permits the manufacturer to market the drug in Canada.

No drug is approved without the full confidence of the TPP that the benefits of using the drugs outweigh the risks and that as much information as possible is being made available to Canadians on how to minimize the risks presented by the product.

The TPP has set internationally competitive performance targets for its reviews. While the length of time for review depends on the product being submitted, generally the process for review of a unique drug takes an average of two years from the time that a manufacturer submits a "new drug submission" until the TPP approves the drug and issues the NOC. Throughout the process, the safety and well-being of Canadians is maintained as the paramount concern.

The TPP has been and continues to be committed to ensuring the greatest efficiencies in the drug review process. To do this, the TPP is pursuing several initiatives to streamline the process, including the capacity to receive and review electronic drug submissions; pursuing technical standards agreed to internationally; continuing negotiations with other countries, such as the United States, Japan, the European Union, Switzerland and Australia, on mutual recognition agreements that will help to expedite drug reviews in Canada when the submission is being reviewed by one of these other countries; and sharing reviews of drug submissions with other countries.

The TPP has a priority review process in place to expedite the review of promising drug products for life-threatening or severely debilitating conditions, such as AIDS or Parkinson's Disease, for which there are few effective therapies on the market.

Once a new drug is on the market, controls continue. The manufacturer must report any new information received concerning side effects, including failure on the part of the drug to produce the desired effect. In addition, the TPP monitors adverse reactions, investigates complaints and problem reports, maintains post-approval surveillance, and manages corrective action when necessary.

The evidence required and the process of review for drugs intended for pain control and sedation differ little from the process described above. The TPP monitors the standards of evidence and methods of demonstrating safety and efficacy used by other major regulatory agencies and those put forward by experts and professional societies in their appropriate areas of expertise. These standards are incorporated into the TPP's reviews. An important point to consider is that drugs used for pain control and sedation are used in a wide variety of clinical conditions, from control of acute pain of short duration, such as in post-traumatic or post-surgical events, to chronic pain control in terminally ill patients.

The decision as to which drugs to use and under what conditions falls within the scope of the practice of medicine. The regulation of the practice of medicine is the responsibility of the provinces through their Colleges of Physicians and Surgeons.

I will now touch upon the international obligations for Canada.

The Canadian regulatory regime around controlled drugs derives principally from the direction given in the three United Nations drug conventions ratified by Canada. This Canadian regime is designed to keep the drugs within the legitimate medical supply system, ensuring that the legitimate medical and scientific needs of Canadians are met and ensuring the accountability of those handling the drugs. The result is that the regime utilized in Canada is similar to that used in other countries.

The regimes in some countries do not meet the convention requirements and some countries have not yet ratified all three international drug conventions. The United Nations, through its International Narcotics Control Board, is attempting to convince all countries to ratify and comply with the convention requirements because drug problems are not confined to one country, to one region of the world, or to one group of individuals.

The United Nations believes that all countries have a part to play in minimizing the availability, outside the legitimate medical and scientific system, of drugs that are subject to abuse and misuse. Thus, all countries must meet minimal standards of control and accountability, if that goal is to be achieved. The three international conventions control the manufacture, importing, exporting, and distribution of drugs, such as those used to alleviate pain, in a manner that permits them to be available to meet legitimate medical and scientific needs.

Most drugs used to alleviate pain are scheduled in these three UN conventions, and Canada, having ratified them, has an obligation to meet all of their requirements. Health Canada fulfils that obligation through the use of the Controlled Drugs and Substances Act and its regulations. Drugs such as morphine, codeine and heroin are subject to the provisions of the Single Convention on Narcotic Drugs, ratified and issued in 1961, and are listed also in Schedule I of the Controlled Drugs and Substances Act, as well as its narcotic control regulations.

Benzodiazepines and barbiturates, which are listed in the Convention on Psychotropic Substances issued in 1971, are in Schedules III and IV of the Controlled Drugs and Substances Act. Drug precursors used in illicit laboratories to produce a number of those drugs that are subject to abuse and misuse are listed in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which was issued in 1988. Those substances are scheduled under the Controlled Drugs and Substances Act in Schedules V and VI. It is expected that Canada's precursor regulations will be written in the very near future.

These conventions restrict the use of the scheduled drugs to medical and scientific use. While some are tabled as having no medical use, such as LSD, others can be prescribed by a licensed medical practitioner to treat a medical condition. All scheduled drugs require import-export controls, and those who manufacture, distribute, import or export them must be licensed.

Before drugs are added to the schedules of the international conventions, the World Health Organization provides medical and scientific advice on the appropriateness of such action. While that advice is not binding on those countries voting to add, delete or reschedule a drug under international control, it is provided to all countries and is seriously considered by those who are voting.

The Single Convention on Narcotic Drugs requires that some drugs, such as morphine, operate under an "estimate" scheme. Thus, each year the TPP provides the International Narcotics Control Board with Canada's estimated consumption and inventory of those drugs. A sufficient quantity of each of those drugs can then be imported to meet those consumption and inventory estimates for Canada. Should the estimate prove to be insufficient to meet our legitimate medical and scientific needs, it must be revised. Otherwise, there would be a shortage of the drug within Canada, because other countries are required to stop supplying a country once the estimate has been filled.

When the Controlled Drugs and Substances Act came into force in May of 1997, the Narcotic Control Act and Parts III and IV of the Food and Drugs Act were repealed. The Controlled Drugs and Substances Act has several sets of regulations, for narcotics, controlled drugs and restricted drugs, as well as a proposed set of regulations for targeted drugs. The latter set of regulations will include drugs such as the benzodiazepines. Also included are regulations for the commercialization of hemp, for the designation of analysts, and for police enforcement.

There is currently no production of controlled drug raw material in Canada. Canada imports all of its drug requirements. After receiving an import permit from the Therapeutics Products Programme, the licensed pharmaceutical company will import the raw drug material or, in some instances, the finished product. If it has received a notice of compliance from Health Canada, the manufacturer is able to sell the finished product to licensed distributors, pharmacists, hospitals, physicians, veterinarians, and dentists.

Health Canada also has a mandate to keep the international controlled drugs within the legitimate medical and scientific supply system permitted by the CDSA and its regulations. Those regulations permit inspectors authorized under the legislation to audit licensed dealers, pharmacies, hospitals, physicians, dentists, and veterinarians. The audits are undertaken to ensure drug accountability and to detect and investigate diversions. It is not the mandate of the TPP to regulate the professions of pharmacy, medicine, dentistry, or veterinary medicine. That is a provincial responsibility. However, the TPP communicates with the provincial licensing authorities when a health professional is part of the diversion and with the police when a criminal activity has taken place.

There are in Canada, as we mentioned, three normal avenues for physicians and patients to access the substances claiming medicinal value under the Food and Drugs Act and its regulations. Those three avenues are: when a drug has been approved for general marketing in Canada; when it is available to clinical trials; and when it is available through the Special Access Process, or SAP; and all of those are managed by the Therapeutic Products Programme within Health Canada. In all three cases, substances that are regulated under the Controlled Drugs and Substances Act may have to meet additional requirements, such as importation and distribution requirements.

After a notice of compliance has been issued to a drug company for a product, the company can make it available on the Canadian market. Products containing narcotics or controlled drugs can be prescribed by physicians, veterinarians and dentists licensed by a provincial licensing authority. The patient would then normally have the prescription filled at a local pharmacy. In a hospital, the physician prescribes a drug, and the hospital pharmacy usually supplies it for both in-patients and out-patients.

From time to time, a physician will read in the scientific literature that a certain drug is available in other countries and, from the information provided, feel that a patient would likely benefit, if he or she had access to the drug, because conventional therapies had failed or were inappropriate. However, if no NOC has been issued, no pharmacy will have the drug in stock, and, if the drug is scheduled under the Controlled Drugs and Substances Act, neither the physician nor the patient will legally be able to import it into Canada. The physician can, however, contact the Therapeutic Products Programme's Special Access Process. In those circumstances, the two areas of TPP -- both the Special Access Process and the Office of Controlled Substances -- will be involved. The staff will review the request and the Office of Controlled Substances will be required to make arrangements for such things as importation.

In conclusion, the TPP has a specific mandate to ensure that therapeutic drugs in Canada are safe, effective and of high quality. Furthermore, it manages a regime to ensure that those drugs that are internationally controlled are available for legitimate medical and scientific use while minimizing the diversion of those drugs to the illicit market.

We would like again to thank you for the opportunity of appearing before your committee. Doctor Gillespie and I are available to answer your questions.

The Chairman: Thank you. Before I turn to other senators, I have a couple of questions that I should like to ask that are more general in nature.

I understand that you have two major studies going on now. I do not know how you would categorize them under your system, but one is with respect to the use of heroin within the hospital setting and the other is with respect to the use of marijuana, which would also be within the hospital setting, but would as well, I understand, be outside the hospital setting. Can you give us any information about those two studies?

Ms Bouchard: If I may, I will start with the marijuana studies. As you are aware, a research plan was tabled by our Minister of Health last June; that plan includes various strategies and components of the research activities with respect to the use of marijuana for medical purposes. The three components of that plan are to undertake a research project with a group in Toronto, called the Community Research Initiatives of Toronto, along with the Canadian HIV Trial Networks. Those two groups, in association, will be conducting a research project on AIDS, or patients with HIV, with regard to trying to study the effects, for medical purposes, of marijuana on nausea and also as an appetite stimulant. That project has not been initiated; at this point patients have not been involved. However, they are in the process of finalizing their research protocol, which, as I mentioned in the presentation, will require regulatory approval and also ethical approval from the Canadian HIV Trials Network. We estimate that they may be in a situation where patients will be enrolled in a trial in the year 2000; so progress is being made.

The other component of the research plan is through the Medical Research Council. Researchers across the country have been invited to submit proposals for research activities or research projects with regard to marijuana. The date for submission of projects with the Medical Research Council was March 1, and we understood that some researchers had submitted a proposal for research projects. At this time, those projects are being reviewed within the Medical Research Council's overall structure. They are being looked at from the scientific perspective. We envisage that, through the Medical Research Council, we will have an interesting project in the field of marijuana for medical purposes, starting, we hope, in the year 2000.

Those are the two main components of the research plan with regard to activities that will lead to studying, specifically, marijuana for medical purposes. You have probably also heard that, through section 56 of the Controlled Drugs and Substances Act, some exemptions have been granted to patients to use marijuana for medical purposes. Those exemptions were granted following applications from those patients with support from their physicians in those particular situations. Those are the three aspects of the elements of the research plan going on at this point.

With regard to heroin, we understand from TPP that some researchers are interested in developing clinical trials of the use of that substance in the treatment of people. I am not aware of any specific projects that have been initiated at this point, because we would have known with regard to the distribution of heroin, but again, people have been discussing the development of that type of research activity in Canada.

The Chairman: Then my information is not correct, because I understood there were some trials going on in some hospitals with respect to the use of heroin as opposed to morphine, or indeed in combination with some other drugs.

Ms Bouchard: You refer perhaps to the use of heroin in treatment for pain. Heroin is available in Canada. It was reintroduced to the Canadian market in 1985, and it is currently available for physicians to prescribe. The regulations specifically say that it is available for pain treatment, but it must be prescribed within the context of a hospital setting for in- or outpatients of the hospital.

You are totally right with regard to the availability of heroin in Canada for the treatment of pain. I was referring to some other researchers or clinicians in Canada who want to perhaps conduct some studies with heroin but for a different purpose than the treatment of pain.

The Chairman: My question was specifically with respect to pain treatment.

Dr. Gillespie, one issue that has been before this committee, and was before the previous committee, is the whole discussion of the titration of opiates and whether or not at some point the use of morphine or heroin kills the patient. Our palliative physicians consistently tell us that that is not the case. The body adjusts to the amount of the drug within the system, and it is highly unlikely that the use of those drugs actually leads to the death of the patient. Can you enlighten us on that? Do you have knowledge of any trials that have been conducted with respect to that?

Dr. Brian Gillespie, Senior Medical Advisor, Bureau of Pharmaceutical Assessment, Health Canada: I am unaware of any specific trials that have been conducted with respect to that aspect of the use of such drugs. We look at morphine in terms of its control of pain. There are recognized risk factors for using morphine. Individuals with cardiovascular disease or individuals with severe respiratory disease may be at increased risk. From my reading of the literature, I understand that individuals do become tolerant fairly rapidly when they are on these drugs and that the risk may be less than had been previously estimated. However, I have no specific knowledge, other than my reading of the literature.

The Chairman: Thank you.

[Translation]

Senator Beaudoin: Canada controls all drug imports and exports. I suppose that there is very little variation with respect to this control from one country to another. What are these differences, if any, between our country and the countries around us, the United States or France, for example? Are they due primarily to the fact that we have different legislation or a different criminal code? To what extent do our statutes or our codes influence the import or export of drugs into Canada, again in the context of the palliative care that we are studying?

Ms Bouchard: Canada has signed the United Nations' international conventions, like most other countries. All of these countries, even the farthest away like Australia, follow the same rules, because the conventions covering the import or export of drugs all apply the same way. The International Narcotics Control Board is responsible for determining these rules.

For products that are often used to control pain, such as morphine or other strong substances, these countries must also respect the same system, which determines annual consumption amounts for each respective country in accordance with these conventions. Each country must establish its requirements for a one-year period, to ensure that sufficient products are imported to meet the population's needs.

Of course when we deal with sectors other than imports and exports, our national statutes come into play. Legislation can vary from one country to another in certain regards, but not really with respect to international conventions.

Senator Beaudoin: Are there major differences from one country to another with respect to pain management?

Ms Bouchard: Does your question refer to prescriptions, distribution or authorizations?

Senator Beaudoin: With respect to availability, is it easier here than elsewhere or the same? Are the same products used to manage pain?

Ms Bouchard: Without having done in-depth analyses, I would say that it is comparable. Countries import the raw materials they need to manufacture products to manage pain from accredited suppliers in the world. Opium, the basic ingredient for manufacturing most of these products, comes from countries that have the exclusive right to produce it.

Each country must assess its requirements in order to ensure that it responds to the population's needs.

Senator Beaudoin: Is there international control?

Ms Bouchard: Yes. If a country realizes that it has not adequately assessed its requirements, it is important to correct the evaluation as quickly as possible so that the country is not prevented from importing more. In Canada, we have never experienced a shortage. Requirements have always been adequately defined.

Senator Corbin: On page 2 of your presentation, in the first paragraph, you talk about testing the drugs on humans, through clinical trials. You say that these trials must be approved by ethics committees, and all clinical trial participants are informed about the nature and goals of the study, the potential risks and benefits, and their right to withdraw at any time. Why does this clause mention the right to withdraw at any time? Are there problems on that level? Have there been cases where people have withdrawn from clinical trials, and why?

[English]

Dr. Gillespie: I am unaware of any specific cases where individuals have withdrawn from criminal trials.

As with any medical treatment, including the approved use of drugs, an individual has the right to refuse treatment at any time. Perhaps they have had an adverse experience or feel uncomfortable continuing in a clinical trial. Clinical trials are conducted with experimental drugs, and patients generally have limited information as to both the drug's effectiveness and its safety. They may become uncomfortable about that and choose not to continue in the trial.

[Translation]

Senator Corbin: When you talk about participants, you are essentially referring to patients, yes? You are not referring to members of the ethics committee or members of any other professional body? By participant, you mean the patients who are the subjects of the clinical trials? The text is not very clear.

[English]

Dr. Gillespie: With regard to withdrawal from the clinical trials, it is up to the patient or the participants. The ethics committees are committees or boards that are usually set up within hospitals or other institutions to review the protocol of the trial in order to ensure that the rights of the patients are protected and that all known safety measures are instituted. They often have a monitoring element so that, if an unusual or previously unexpected safety issue is identified, that will then be communicated to the patients and in some cases may even stop the trial.

[Translation]

Senator Corbin: Is the code of ethics the same everywhere in Canada or is there a specific code that applies to these clinical trials? Is this a code that has been defined by the department or is it a general professional code?

[English]

Dr. Gillespie: While I am not an expert in this area, there are certainly ethical codes within Canada relating to the practice of medicine. There are also international codes, such as the Helsinki Convention, for the protection of patient rights.

The Department of Health does not have specific codes. However, we do review clinical trials before they are approved to ensure that the safety of the subjects are protected in the clinical trials and that they are adequately informed as to the potential risks and benefits of the drug that they are going to be using in the trial.

[Translation]

Senator Corbin: Ms Bouchard, on page 5 of your brief, in the section that deals with manufacturing, you said that there is no production of controlled drug raw materials in Canada. Why is this the case and what do you mean by raw material?

Ms Bouchard: Opium, which is the basic ingredient in the manufacturing of morphine, for example, is produced exclusively by certain countries. Countries therefore import this basic product from the manufacturing countries in order to produce their own medication. Canada and other countries, such as France, buy their basic products outside the country.

Senator Corbin: Does that not necessarily mean that Canada has a deficiency in terms of basic product production?

Ms Bouchard: Do you mean that we are lacking in basic products?

Senator Corbin: We could be manufacturing them ourselves instead of importing them.

[English]

The Chairman: In one of our recommendations on pain control and sedation practices, we addressed the issue of total sedation. We heard about two examples of total sedation. Dr. Keon spoke about the total sedation of a patient immediately following surgery, particularly very complicated cardiac surgery, in order that the patient be absolutely still for a period of time. We were also told, however, that there is as well the practice of using total sedation for a dying patient, because the pain is so severe that the only way it can be controlled is to totally sedate the patient so that in fact the patient is comatose.

One of the recommendations we made was that the federal government, in cooperation with the provinces and territories, undertake a study to determine the frequency and conditions under which total sedation in Canada is practised. Do you know if any such study has been undertaken?

Ms Bouchard: No.

The Chairman: Thank you for coming today. You have been most helpful in providing the information that we require.

Honourable senators, our next witness this afternoon is Mr. Hugh Scher, Chair of the Human Rights Committee of the Council of Canadians with Disabilities.

Welcome, Mr. Scher. I would ask you to come to the table now and make your presentation to us.

Mr. Hugh Scher, Chair, Human Rights Committee, Council of Canadians with Disabilities: Madam Chair, it is my pleasure to be here with you today on behalf of the Council of Canadians with Disabilities. I chair the Human Rights Committee and have done so for the last five years.

The council is an organization of organizations of people with disabilities. It has representation from member groups across the country. It is what we call a cross-disability organization, in that it represents people with all kinds of different disabilities including physical, developmental and mental disabilities. Its membership consists of a number of provincial and territorial organizations as well as national organizations that are more disability specific. We represent approximately 250,000 people with disabilities across the country.

As Chair of the Human Rights Committee, I bring to you my experience both as a constitutional lawyer by profession and as someone who has been involved with these issues for the last 10 years. The first subject I wish to talk about is the disability context within which I and other people with disabilities are living today. The point I am trying to make is that without a full understanding of that context, it is difficult to have a full and frank discussion of the issues you want to talk about, which are very important. Although there have been many gains in terms of accessing social life, I am referring to the fact that people with disabilities continue in large measure to be excluded members of Canadian society. That is, perhaps, reflected best by our 60 per cent to 70 per cent unemployment rate.

In large measure, that exclusion from mainstream social life has marginalized people with disabilities within Canadian society. As a consequence, it has led to a negative perception about people with disabilities that stems from a history of exclusion and marginalization, including times when people with disabilities were in institutions and institutionalization was the norm of social policy in this country.

That context has had a tremendous impact on the lives of people with disabilities, particularly in respect of accessing health care services in this country and in respect of the decisions that are made concerning the treatment and non-treatment of people with disabilities. I will point out a couple of examples.

Terry is an 18-year old Alberta boy with Down's syndrome who required a lung transplant. Because he had Down's syndrome, the hospital board at the time applied a policy that said that, because of his disability, they were not prepared to grant a lung transplant. Because of the considerable concerns raised by Terry, his family and others, eventually the hospital changed its policy and granted him the medical procedure he needed. In Alberta, the response on the open-line shows, and generally across the province, was to the effect: "What are we wasting our tax dollars and health care resources on this for?" The perception was that to use our scarce health care dollars to assist a person with Down's syndrome in accessing the necessities of life was deemed to be not worthwhile.

I represent a client in Ontario who has multiple sclerosis. He is 35-years old, bedridden and cannot speak. He communicates only by blinking. He requires a 24-hour-a-day oxygen service. A policy of the Ontario government is that the maximum it will pay for oxygen service is $540 per month. My client's oxygen needs cost $2,500 per month. Despite the fact that he is living in the community and that his wife is serving as his primary caregiver, and despite his clearly stated willingness to live, he is being told by the government and by the oxygen company that he now has to pay for his oxygen service and that, if he cannot, he should perhaps go to the hospital. That will not only cost our taxpayers thousands of dollars more, but will likely kill my client.

That is the context within which many people with disabilities are living today and trying to access health care services that are necessary for life. Very often when they request them they are shunned or questioned as to whether their lives are worthwhile.

Why is it that, when people with disabilities go in for a tonsillectomy, one of the first questions they are asked is whether they want a "do not resuscitate" order put on their chart. As I understand it, that is not common practice for most patients going in for tonsillectomies.

In spite of some of the gains we have made, and in spite of rulings by the Supreme Court of Canada, many people with disabilities still do not have access to the supports that are necessary for life and for the provision of appropriate care. In the case of Eldrige, who sued the Ministry of Health of the Government of British Columbia, the Supreme Court ruled that persons with disabilities are entitled to access health care services with the assistance of sign language interpretation, for example. That case involved a deaf woman who was having a baby. The Supreme Court of Canada said that that is an integral part of the service delivery of health care in the Province of British Columbia.

That is the context within which the discussion we are having today is taking place. It is a context of public acceptance or indifference, very often to serious abuse or to the killing of people with disabilities. I will talk about the Latimer case in a moment.

The purpose of our criminal law is to provide protection for society, including protection from murder. The purpose of our criminal law and our criminal sentencing process is to ensure stability, certainty, public safety, and equal treatment and benefit of the law to all Canadians. Punishment, deterrence, both general and specific, retribution, denunciation, and rehabilitation are all aspects of our criminal sentencing regime, and I will not go into them in great depth, but those are the relevant principles that are typically applied.

With respect to the crime of murder in this country, we have a history of mandatory minimum sentences. That history stems from an even further history, which held that murder in this country was punishable by capital punishment. Therefore, if you killed someone, your life would be taken. A compromise reached by our Parliament at a certain time in our history was to remove capital punishment as a means of meting out justice and to replace that process with what was deemed to be a more civilized process of mandatory minimum sentences. In the case of first degree murder, the mandatory sentence was life imprisonment without parole for 25 years; in the case of second degree murder, the mandatory sentence was life imprisonment without eligibility for parole for 10 years. That is the regime that continues to exist today.

Our organization has done some work on researching the charging practices and sentencing applications in this country. Let me talk generally about the two fundamental principles that are applied in determining when a charge will be prosecuted against someone. A Crown attorney particularly looks at whether there is a sufficiency of evidence so as to demonstrate a likelihood of conviction if all the facts of the case are proven and the case is brought to trial. The second factor that is looked at is whether or not prosecuting an offence is in the public interest, and it is in that area that I will spend a little more time, because I think it raises issues relevant to your deliberations today and in the future.

Some of the public-interest considerations applied across the country are: the serious nature of the allegation; whether a conviction is likely to result in a significant sentence; whether considerable harm was caused to the victim of the crime; and whether there was use or threatened use of a weapon. Whether the victim is a "vulnerable" person is a factor that is looked at as a matter of determining public interest in the prosecution of crimes in this country. Whether the accused had a previous criminal record is sometimes looked at, and whether the accused was in a position of trust or authority over his victim is also taken into consideration. Other factors taken into account are the accused's degree of culpability in relation to others who may have committed the crime with him; evidence of premeditation; and whether the offence was motivated by the victim's race, colour, religion, sex, age, sexual orientation, political beliefs or disability.

Our public office has recognized that disability, in and of itself, is a factor that one looks at in considering public interest in pursuing criminal prosecutions in this country. However, many provinces have expressly indicated that prosecutors should not look at, and indeed have prohibited them from looking at, a number of factors. These include things like race, religion, sexual orientation and political beliefs of the accused. Very often in many provinces the Crown is prohibited from even considering his or her own personal views or opinions with respect to the accused or the victim; hence, the notion that "Justice is blind".

It is important that we consider the impact of differentiating between murders motivated by compassion and other murders. It is particularly important that we look at the dangers of applying sentences based on the situation or circumstances of a victim, particularly where our view of that victim may be shaped by devaluing perceptions and understandings about that victim's quality of life that are prevalent in the context I have described to you today with respect to people with disabilities and assessing quality of life of people with disabilities in Canada.

The recommendation of this committee was that there be a third category of murder carved out with respect to murders that are motivated by compassion or mercy. My response, and my organization's response, to that is that it is extremely dangerous to begin differentiating between these kinds of crimes, because we are certain to be shaped in our perceptions by the context in which we live and the biases we hold. In our view, it is inevitable that those biases and negative perceptions will shape our decisions in ways that put at risk people with disabilities and other vulnerable Canadians.

If this committee is interested in considering changing or adapting the mandatory minimum sentences in this country, I and our organization would urge very strongly against creating a separate category of murder that would, in effect, amount to a category of the murder of vulnerable people.

When we look at murders that are motivated by compassion, the victims almost in every case are vulnerable people -- people who are sick, people who are aged, people who have disability. If we are to craft a new crime of murder, which is really the murder of vulnerable people, then I think we must be very careful about looking at the implications of that, particularly for the community of people with disabilities, for the reasons I have stated, but also for all of us, because each of us at any point in time can become disabled. We will all age, and we will all become subject to the kinds of biases and perceptions that I have discussed here today. It is our council's recommendation that the murder provisions in place today remain as they are, because we view them as the last protection from serious abuse and violence for people with disabilities.

I find it intriguing that two years ago I was here talking to a Senate committee, and to the parliamentary justice committee, about a new offence that was being added to the Criminal Code relating to the sexual touching of people with disabilities as a specific crime. I recall that we and the committee were concerned about the fact that people with disabilities are disproportionately victimized in these kinds of crimes, and we acknowledged that disability is an aggravating factor that must be considered when we look at charging and sentencing one who is convicted of this kind of crime.

When we talk about murder, why do we not also look at disability as an aggravating factor? We are, in this discussion, looking at disability as a mitigating factor to justify the actions of a murderer, and I am concerned that that has the effect, intended or otherwise, of creating a third category of murder, the murder of vulnerable people.

If the committee were inclined to change mandatory minimum sentences, my recommendation would be that it not create a separate category of murder that would amount to the murder of vulnerable people, but that it apply the law equally to all Canadians and that it do away with mandatory minimum sentences. Therefore, all murderers would have applied to them the appropriate sentencing principles and would not be differentiated based on the nature of their crimes or, more particularly in my view, the circumstances of their victims.

I am not recommending that approach. Our council still believes that the murder provision represents a last safeguard to protect people with disabilities from serious abuse and death. I am recommending, if the committee is inclined to consider that approach, that it do so in a way that is applied equally to all Canadians and that does not single out people with disabilities and other vulnerable people, thus creating a category of killing that justifies the actions of killers who kill people with disabilities by taking away the significant punitive and deterrent effects of the Criminal Code sentencing provisions.

Do not deny the equal application and the benefit of the law to people with disabilities. To do so could potentially represent a significant violation of our Charter guarantees of equality under section 15 of the Charter of Rights and Freedoms.

Our concern in this area was prompted in large measure by a case that is well known to all of us here; I refer to the murder of Tracy Latimer. Our council was an intervenor in that case at both the Court of Appeal in Saskatchewan and the Supreme Court of Canada. It is the view of our council members that that case reflects the reality of attempting to trivialize or marginalize the actions of a killer who decided to, in a premeditated, planned and deliberate way, take his daughter, put her in the cab of his truck, gas her to death, lie about it to the police, cover it up and allow his wife to come home and find the girl dead in her bed and suggest that she had died in her sleep.

If the law is not applied, all people with disabilities are put at risk in what is more than just a hypothetical or theoretical debate at this time.

Years ago we spoke about how a slippery slope would be created and the flood gates would be opened if Robert Latimer were set free. Without influencing anything that the Supreme Court may or may not do, the fact is that the court's and the public's reaction to Robert Latimer has set in motion already a series of actions that have ended in the murder of children across this country -- whether it is Antoine Blais in Quebec, an autistic child who was drowned by his mother in his bathtub at 12 years of age; Katie Lynn Baker, who was starved to death by her mother at age 4 in British Columbia; Ryan Wilkinson, who was, in the same manner as Tracy, gassed to death by his mother in a murder-suicide in Hamilton, Ontario; or the many others that we know about, or do not yet know about, or who have not yet been murdered but will be, if we do not as a society and as a Parliament take steps to ensure that our most vulnerable are protected and afforded the equal benefit and protection of our law, including our criminal law.

Senator Beaudoin: Actually, Mr. Scher, I do remember that when we discussed the Latimer case in committee we suggested a third degree of murder, and we gave some attention to that concept, but as it was nearly at the end of our work I do not think anything came of it.

It is true that this is a complex matter. I agree with you. On the other hand, we must take into account that it is still a murder; we all agree on that. Obviously, it is a murder. The question of whether it is a murder that is different from other murders -- let us say murders by the Mafia -- remains to be taken into account.

Do I understand that, in your opinion, we should not consider that possibility? The reason I ask you the question is that all murders are not necessarily the same. A murder by a member of the Mafia and a murder by a man like Latimer are not in the same category at all. However, they are both still murders.

My first reaction is to say that we must give some thought to this issue. You are the first witness, as far as I remember, to address exactly this problem. That is why I ask you this question. It worries me to a certain extent, as it does my colleagues, I am sure. We wish to be quite sure that such a study is worthwhile and that we should do it. If you say it should be taken under further study, I may understand that. Do you say that we should not pay any attention to that possibility?

Mr. Scher: I would agree with you that not every murder is the same and that murders are different in nature by their very circumstances.

I do believe that the murder of Tracy Latimer is just like any other murder. This was a child who was significantly disabled, yes, but who, according to her own mother's journal entries, was in school the week before she was killed, had a dislocated hip and was scheduled for surgery the week after she was killed. That surgery, according to her doctor, would have significantly remedied her pain. Tracy had a father who had a very serious problem with medical technologies and with needles and was phobic, according to a psychiatrist. This man took it upon himself to play judge, jury and executioner with his daughter. Whether that was for what he believed were compassionate motives or not, he never took the stand to say. He was never subjected to cross-examination.

Your question is: Given that different murders are different in nature, does that justify a third category of murder? My answer is that, no, it does not. It does not, because what you would then be saying is that, yes, not all murders are equal, but all murders, except for this kind of murder, will be treated according to the existing mandatory requirements under the law. Where the victim is a vulnerable person, or a person with a disability, or at the end stages of life, then that murder will be treated differently and will be subject to a judicial discretion with respect to sentencing.

Do not create a third category called "murder of vulnerable people". If your concern, however, is that mandatory sentencing is a constitutional and a moral problem, then that is something you might wish to address. I am not suggesting that that is a good thing. I do not believe it is. However, it would be a more sensible and principled approach to address your concerns about the different nature of different crimes than it would be to set up a completely separate category of murder that, in essence, amounts to a de facto acceptance of euthanasia in some respects and, in other respects, the denial of the equal benefit and protection of law to a particular group of people.

Yes, murders are different. No murder is good. I understand you to be acknowledging that murder is not a good thing. What is at issue here is how you acknowledge it and how you sentence and punish for it. Do not create a separate category that will target, further exclude, and marginalize people with disabilities as victiMs It is not necessary. A judge could use equal discretion in sentencing Paul Bernardo as he could in sentencing Robert Latimer.

Senator Beaudoin: I agree with you: a murder is a murder. As a jurist, I am against all murders, obviously. However, I have to admit that the mens rea may differ from one case to another. As we say in French:

[Translation]

"No one should take the law into his own hands."

[English]

I do not know how you say that in English, but it is, and should continue to be, a murder. We realize that one murder can be quite different from another. It may be premeditated or second-degree. The question is should we have a third-degree murder. I want to study that matter in more detail.

Something must be done about the sentencing. Obviously, Latimer is not in the same category as Bernardo. What do we do with a case like that? It is before the Supreme Court. I am sure we will study it in more detail.

You have said that, no, we should not do that, but do something else. We will try to find that something else.

Mr. Scher: To do what you are proposing in terms of third-degree murder is to do more harm than is necessary. I say that because you would be putting at risk a significant element of our population, which is not necessary. You can accomplish the same goal without targeting and putting at risk this element of the population, if that is what you choose to do. To take that approach and to single out this group of people as victims is the wrong approach and a very dangerous one.

The Chairman: Mr. Scher, in your presentation you made particular reference to the case of Blais. As you know, that woman was never charged with anything, which is the dilemma we face in our original hearings. I have to tell you that what we discovered was that the prosecutorial experience across the country was tremendously varied. Dr. Dellaroca, for example, was charged with murder and was convicted of issuing a noxious substance, when he had clearly given a substance that killed his patient. In my view, he should have been charged with murder. However, the prosecutors decided, for whatever reason, that, first, perhaps, they could not have gotten a conviction, which is why they kept reducing it, or, second, that they did not think the offence warranted a conviction for murder. We know that was the case in Meyers in Nova Scotia, where they did not charge with murder but with manslaughter. The individuals involved got off scot-free. I believe a suspended sentence was imposed; however, that was the extent of the punishment they received.

To be fair to the members of the committee, what we desired from this "murder three" was that through the use of murder three more people would be charged with murder rather than the contrary -- that is, not charged with anything or with something that was so limited that there would not be any condemnation of the act that they performed. Would you comment you that, please?

Mr. Scher: I agree that that was the intention of the committee. I do not think I have said anything that disagrees with that. What I am saying is that you can do that, if you take away the mandatory minimum sentences for murder generally and subject all murderers to the same judicial discretion and sentencing and to the equal application of the law.

Senator Beaudoin: Did you say that we may solve this problem by removing the minimum sentences?

Mr. Scher: Yes, if what you are attempting to do is to make murder a more attractive charge so that prosecutors will feel more comfortable to use their discretion to charge murder in cases where it is warranted, but would be otherwise fearful of doing so because of a mandatory minimum. If you remove that minimum, you give the prosecutors the comfort to use that discretion to charge with and to prosecute for murder.

Senator Beaudoin: Let us suppose we remove the minimum sentence. Will discretion be used in its place?

Mr. Scher: Yes.

Senator Beaudoin: Are you saying it should be entirely discretion?

Mr. Scher: That is what you are suggesting for third-degree murder.

Senator Beaudoin: No, we do not suggest that. A murder is a murder.

Mr. Scher: However, with respect to sentencing, you are suggesting that for murder three, as I understand it, the trial judge would have exclusive discretion as to sentencing. There would not be limitations on that. In other words, if the judge said that under the circumstances two years less a day would be an appropriate sentence, he would be free do that. If the judge felt that, under the particular circumstances, probation or time served were appropriate, he could do that. If you remove the mandatory minimum sentences, you enable judges to do the same thing, and you still ensure that everyone has the same law applied to them.

Senator Beaudoin: We should give further thought to that.

Mr. Scher: I will address one of the other points in terms of all murders being the same. I think we would agree as a matter of principle that someone who is dying of terminal cancer and will be dead within a period of minutes, hours or days is significantly different from a 12-year-old with cerebral palsy whose life expectancy is anywhere from one day to 70 or 80 years and who is a living and functioning person. Once again you have this issue of the circumstances.

I hear you saying that, when you say some murders are different from other murders. You mentioned it when you talked about the Mafia. You are saying that the nature of the murderer may be different. I understand that, and I can accept that. However, I am concerned that we do not differentiate murderers based on the circumstances of the victims, either intentionally or unintentionally.

In my mind, to create a third category of murder, a third-degree murder, would be to do precisely that. It would create a murder charge that, in effect, says, "Here's what will happen. Here is the provision that is in place for people who murder disadvantaged or vulnerable people, because presumably it is motivated by compassion." You may have to define what you mean by "compassion" or "mercy" so as to assist in that adjudication, but it amounts to the same thing. In essence, it also amounts to a de facto acceptance of euthanasia against these groups.

Senator Beaudoin: No, because the killer is punished.

Mr. Scher: The killer may be punished or may not be. It depends on what you consider as punishment. For example, if someone goes through with this act and gets time served or no punishment, then, in essence, that person is not punished. People may be punished technically, through the legal system, because there is a sentence -- maybe probation, maybe a year on the farm -- but they are not punished. I do not accept your premise that when you create this third-degree category of murder and convict people, that they will be punished. The whole point of diminishing the mandatory minimum sentence is to ensure that either they are not punished or they are punished less than other murderers would be in different circumstances. In my view, the factor that is differentiating these cases is the circumstances of the victim.

Senator Corbin: I never cease to be astonished or to marvel at the way public opinion is formed, especially coming out of so-called public opinion polls. Perception is everything. Perception based on information or disinformation or bad information leads to some understanding, more or less, and finally a judgment call.

I have been bothered by the way the Latimer case has been presented by the media generally. I am sure you read the papers, probably more than I do. This is germane to our exercise here, because we have witnesses who come before us and invoke public opinion polls to sustain their theses or their objectives or recommendations.

Would you share some thoughts with us along those lines?

Mr. Scher: Let me start by saying that it is the public reaction in the Latimer case that in large measure prompted our tremendous concern as a community about these kinds of actions. The Council of Canadians with Disabilities was an intervenor in the Supreme Court of Canada in the Rodriguez case, and we were there saying that persons should not be physically prohibited from doing what they would otherwise be able to do if they did not have a disability. We also said, "Don't strike down the law unless and until adequate safeguards are put in place that will protect people with disabilities and others from serious abuse." Then we had Robert Latimer coming along, taking his daughter, placing her in the cab of his truck, killing her, gassing her to death, watching her, timing the amount of time it takes for her to die, planning for it for 10 days, figuring out which way he would do it, and lying to the police about it. I will not go into some of other checkered issues about his past, but there are many facts that are not presented, and the media have a responsibility. Let us be honest here. Two juries of his peers have heard the evidence, have heard the medical evidence about pain, about surgery and about what was required, but despite that evidence have returned verdicts of guilty on murder. However, yes, the public opinion is that this person is a noble and heroic figure, and that concerns me.

Senator Corbin: You alluded to other cases.

Mr. Scher: Yes.

Senator Corbin: The effect of this so-called compassion surrounding the Latimer case was an incentive for other people to act.

Mr. Scher: We have received calls at our office about that.

Senator Corbin: Would the press be responsible for that?

Mr. Scher: I think they are in some part.

Senator Corbin: I refer to the media generally.

Mr. Scher: Frankly, I have some concerns even with respect to this committee's deliberations, because I understand that a report is scheduled to be produced by June 5. If that is the case, it will precede the Latimer hearing before the Supreme Court of Canada, which is scheduled to take place on June 14. If you are thinking about a third-degree murder charge or some kind of lessening in sentencing and if your report is released one week before that hearing by the Supreme Court of Canada, I am concerned about what effect that might have. I have every confidence that the justices will not be unduly influenced by your deliberations and your report, because they are experienced and have the independence of their positions, but I am positively sure that the public will be extremely impacted by what you say or do not say.

My request to you on behalf of the Council of Canadians with Disabilities, as an intervenor before the Supreme Court of Canada in the Latimer case, is to ask that you delay the release of your report until after the hearing by the Supreme Court of Canada in this matter for precisely the reasons that you have mentioned -- the effect of the media on public attitudes, on public thinking, and on the potential impact on our community.

The Chairman: I think to some degree you misunderstand the purpose of this committee. We are not here to make any new pronouncements. We are here to review any action that has been taken on initiatives about which we were unanimous. So I do not think your concern is quite valid.

The date was chosen because it is the fifth anniversary of the original release of the document. However, as I have said, we are only dealing with the unanimous recommendations. We will not make new recommendations, but will simply remark upon what the government has done with respect to this or that.

Mr. Scher: I understand that, and I am not suggesting that this committee is attempting to influence that process. Further to what Senator Corbin said, whatever you do produce will be heard by the public and will be talked about. That is why you are producing it. Inevitably, that will impact on public views and opinions and, inevitably, in our experience, things will get mixed in together. Although the intent may be simply to do a report card on what governments have or have not done, I do not believe that it will be applied in the media in the way you are suggesting. It will be used to fuel the arguments of one side or the other in whatever agenda or position they are trying to put forward.

With no disrespect to this committee or to you, Senator Carstairs, I am positive that whatever you do produce will be used in that forum, and I request that you postpone the release of your report. I understand that you have time issues, but I am concerned that what you say could have an impact on public discussion and debate about this case.

Part of our concern is that it has been almost impossible to fully undertake a rational debate on some of these issues because of the tremendous emotion evoked based on the responses and the actions that have resulted from public opinion around Sue Rodriguez, Robert Latimer, and this committee's first report, and that further fuel those who may have other agendas.

The practical difficulty I face is that our office has received calls from parents saying that, if Robert Latimer is set free, they will kill their children. As a lawyer, an officer of the court, and a member of the public, that is my grave concern. Whatever the Supreme Court does, whatever you do as a committee, and whatever I do as a representative of the Council of Canadians with Disabilities is all part of that discussion.

My request is simply that you seriously consider delaying the release of your report so that it is not misconstrued, so that its observations, if not recommendations, are not cast into a discussion into which you do not want them cast, because it will not be helpful to the debate that you want to occur.

Senator Roche: I understand that on September 30, 1994, the Council of Canadians with Disabilities testified before the committee studying euthanasia and assisted suicide. I was not a member of that committee, but I will go back and read your evidence given at that time.

When you testified at that time, did you speak to the committee about your opposition to a third category of murder?

Mr. Scher: I honestly do not recall. I do not think we would have, because the concept did not emerge until after that time.

The Chairman: My understanding from reading your testimony is that you did not.

Mr. Scher: I remember when Bernard Dickens, among others, was introducing this concept. I certainly spoke to him about it at great length.

Senator Roche: Thus, when the committee reported with a unanimous recommendation that a third category of murder be created, did you react? Did you send to the government of the day your view on this unanimous recommendation at that time?

Mr. Scher: I believe we did, although I cannot say for certain. We certainly made public representations opposing it.

Senator Roche: Would you undertake to look into your own records and, if you did communicate with the government concerning this unanimous recommendation made in 1995, will you inform our clerk so that that correspondence can be made available to us?

Mr. Scher: I will do that. I can state with certainty that we have publicly spoken out against that recommendation. I have personally debated with Bernard Dickens on The National on the CBC, and in various other media, speaking against this recommendation since the time it was made. I know we have written letters. I will provide to the committee whatever we have.

Senator Roche: Thank you. I understand that you reject the argument that the appeal of a third category of murder is to enlarge convictions, because prosecutors do not want to press for convictions carrying a mandatory life sentence in cases of "compassionate" murder. I understand that you are rejecting that argument in your rejection of a third category of murder.

I noted that you said that a third category equals euthanasia. Would you enlarge on that for me? The murder has taken place and the argument is that, if there could be a third category with a lesser sentence, the possibilities of conviction would increase because of the possibility of a lesser sentence. As I understand you, you reject that argument because of the integrity of life, because a murder is a murder.

Mr. Scher: That may be part of the argument. I agree with that. More fully, with respect to a third category of murder being de facto euthanasia, I was referring to cases in which a conviction was rendered but the penalty was probation or time served, so that there really was no penalty for the murder. The murder was acknowledged on the books, but no action was taken in terms of addressing it, in the sense that there was no penalty for it other than time served or probation.

Senator Roche: To implement your preferred solution to this problem would require an amendment to the Criminal Code.

Mr. Scher: No, my preferred solution is to leave things as they are, as I stated from the beginning. I said that, if you are intent on changing the Criminal Code, a less dangerous mechanism by which to do that, from my community's perspective, would be to consider removing mandatory minimum sentences across the board, if you create a third category of murder targeting my community and others as the victims.

Senator Roche: To implement your suggestion of rejecting a third category would require changing what was a unanimous recommendation. I want to be sure that you are in fact recommending that we change what was a unanimous recommendation in 1995.

Mr. Scher: That is and is not true. As I understood the recommendation, you wanted to ensure that there was some discretion with respect to sentencing in these matters. You can do that in the way I have described. If you took away mandatory minimum sentences you would have that discretion. You do not need a third category of murder to do that. On the contrary, by creating a third category of murder you are, I believe, creating a two-tier system of justice. Those who kill people who are not disabled or vulnerable will be subject to a mandatory minimum sentence of life in prison without parole for a specified period of time, and those who murder people who are disabled will be subject to a sentence that is within the discretion of the trial judge. Therefore, it creates a two-tier system of justice.

My suggestion is not to do that, but to maintain the existing system, and perhaps to look at other ways in which prosecutors, in their charging and sentencing practices, can address some of your concerns that led you to make this recommendation. More specifically, you can address it very simply by removing mandatory minimum sentences, if that is what you choose to do. That addresses your concern and the recommendation the committee made.

Senator Roche: I will think further about this.

The Chairman: Yes, we will all do that.

Thank you very much, Mr. Scher, for your presentation. It was extremely thought-provoking and very useful to our deliberations.

Our next panel is from Campaign Life.

Honourable senators, all of these witnesses have been told that we are not doing an opening of the non-unanimous recommendations on euthanasia and assisted suicide. They will be limiting their presentation today to the aspects of the report that had unanimous recommendations.

We will begin with Mr. Peter Ryan.

Mr. Peter Ryan, President, Campaign Life Coalition New Brunswick: Honourable senators, thank you for this opportunity to appear before you today. I hope you all have copies of my statement.

Campaign Life Coalition believes in the equal right to life for all human beings. We believe the right to life is a fundamental principle of justice that must be protected in our laws and culture. We are concerned about the weak and vulnerable members of our society, those who are dependent upon others, those who consequently have little or no voice in whether they live or die, be they a preborn child, a young infant with disabilities, a person in a so-called vegetative state due to an accident, an older person with Alzheimer's, or someone debilitated by terminal illness.

I have had a great interest in euthanasia and end of life issues for a number of years. In 1994, when I was working for the Catholic Archdiocese of Vancouver, I assisted Archbishop Adam Exner in his submission to the Special Senate Committee on Euthanasia and Assisted Suicide. In 1996, I completed a dissertation in theological ethics for the Pontifical Lateran University of Rome. My dissertation topic was the Canadian debate over legalized euthanasia. I examined the debate between 1992 and 1995. A large part of the study dealt with the Senate committee hearings and the report "Of Life and Death." I am therefore quite interested to see how you will update the report.

Campaign Life Coalition is concerned about the recommendation on compassionate homicide. I believe that some other members of the panel will cover that topic quite well. My main reason for being here today is to speak to you about the withholding and withdrawal of life-sustaining treatment and the possible connection, in some cases, with non-voluntary euthanasia. As you know, the potential link between these two topics, the omission of treatment and euthanasia, is not something that "Of Life and Death" expressly covers. We are therefore talking about new territory that you could cover as you update the report.

As you review the whole area of withholding and withdrawing treatment and your unanimous recommendations in that regard, as covered in chapter 5 of the report, we ask you to give some consideration to the problem of undertreatment as well as the problem of overtreatment. By "undertreatment", I especially mean when a non-competent patient is denied beneficial, non-burdensome treatment because of someone's prejudice with respect to the patient's disability, age or illness. During the hearings of the Senate Committee on Euthanasia, a number of witnesses reported existing problems of undertreatment, particularly in regard to disabled persons.

The report calls for legal reform in regard to the withholding and withdrawal of treatment. It seems that the type of reform envisioned would make it easier for doctors and others to omit treatment. That might be a good thing in many ways. However, would there not be a real danger that making the withholding and withdrawal of treatment easier could also make undertreatment more of a problem? In any case, I believe the area of undertreatment deserves the committee's close attention, for it affects the basic rights of all citizens to life and health care.

As one considers the phenomenon of undertreatment, there is a basic ethical and legal question that I believe to be pertinent. Can the withholding or withdrawal of life-sustaining treatment sometimes be homicidal? Can it sometimes also be an instance of euthanasia? Please note the word "sometimes". The "sometimes" I am asking you to consider are cases when patients die after being denied beneficial, non-burdensome life-sustaining treatment without their consent. Is it fair to consider such cases as homicide or euthanasia?

Just to clarify the question, I am not asking you whether any case where a patient dies after treatment is withheld or withdrawn is an act of homicide or euthanasia. That is actually a non-issue. People die every day in our country after unnecessary medical treatment has been omitted by doctors. Are those doctors killers? Of course not. We are not talking about situations where people refuse treatment that they consider to be either not beneficial or else burdensome for them. Nor are we talking about cases where parents or other proxies decide to withhold or withdraw unnecessary treatment for a non-competent patient for whom they are responsible. The focus here is on beneficial, non-burdensome treatment.

Now when we consider this question, "Can the withholding or withdrawal of life-sustaining treatment sometimes be homicidal?", we should realize that the law is not silent. Most legal scholars agree that the Criminal Code's answer to the question is yes. The answer permeates essentially sections 215 to 217 of the code. What scope of cases is caught by these provisions may be a matter for debate, but the basic principle -- that the omission of treatment can be homicidal -- seems clear.

I found it curious that "Of Life and Death" neither addresses nor specifically answers the question of whether the withholding or withdrawing of treatment can be homicidal. However, reading between the lines, one gets the impression that the report is inclined towards a negative position on the question. I wonder how the members of this committee read it. In any case, I suggest it would be helpful for the committee to clarify its own position on the matter. If the Criminal Code says that treatment omissions can be homicidal, and the committee is considering the need for law reform with respect to the withholding and withdrawing of treatment, it would seem that this issue of whether omissions can be homicidal must be addressed before meaningful reform can occur.

It might be that the committee would want to clarify that its position is that the withholding and withdrawal of treatment is not homicidal. The reason it might wish to offer that opinion might be that when death occurs following the omission of treatment, it is only nature taking its course. Thus, there is no intent to cause death as there is with homicide. That would be a simple and straightforward position to adopt, but does it hold up to scrutiny? I suggest that it does not.

If you or I were to walk into a hospital and start pulling out plugs on patients' equipment, if we were to start disconnecting respirators, IV lines and feeding tubes, if we were remove to the medicines and technologies that are keeping people alive, would we get away with it? If some patients died as a result of our actions, could we be charged with causing death under the current law? There is not much doubt that we could be charged, and most Canadians would have no problem with that law as it now stands. The question is whether the committee favours a change in the law. If you take the position that the withholding and withdrawal of treatment cannot be homicidal, you logically must be in favour of changing the law to make it impossible to charge homicide against anyone who denies another person medical treatment.

Part of the difficulty in discussing the whole area of undertreatment and denial of treatment is the lack of relevant and familiar cases. In the literature on the subject, there is one common case regarding a Down's syndrome child with a life-threatening bowel obstruction. What happens if the parents refuse the necessary surgery and the child dies? We would have an instance of medical treatment that is fairly routine and beneficial to the patient, not really a burdensome treatment, yet it was denied. Why? Evidently because the parents thought it would be better for their disabled child to die and be spared a life of suffering. The question is this: Were these parents responsible for the death of their child, or were they simply letting nature take its course? I would say prima facie that they were responsible; however, their motive was merciful, which would qualify such a death, in my opinion, as non-voluntary euthanasia and not simply homicide.

When Professor Downie of Dalhousie University appeared before this committee, she referred to the Skeena B. case wherein the court affirmed that, if parents refuse treatment that is in their minor child's best interests, the state can override the refusal. However, if you say that in omitting treatment for children parents are simply letting nature take its course, it does not give the state much of a leg to stand on in intervening in such cases, does it?

While we have not had many well-known Canadian cases of people dying after being denied treatment, the British public has had the benefit of numerous cases, especially with regard to nutrition and hydration. In the cases most recently publicized in the press, it seems many elderly people were deprived of nutrition and hydration because of their caregivers' prejudice about their age.

I believe Alex Schadenberg will speak on those cases later today so I will not dwell on them, but I do note that public concern for this area of undertreatment and denial of treatment has fuelled support for the Medical Treatment (Prevention of Euthanasia) Bill. That bill has now passed second reading and recently was reported back from committee to the house.

The core part of the bill states:

It shall be unlawful for any person responsible for the care of a patient to withdraw or withhold from the patient medical treatment or sustenance if his purpose or one of his purposes in doing so is to hasten or otherwise cause the death of the patient.

I wonder how your committee might feel about having such legislation here. It might help clarify the law in the area of withholding and withdrawing treatment, might it not?

The idea that death can be caused by the omission of treatment and that euthanasia can be a matter of omission as well as an act is not new or esoteric. It is upheld in the Criminal Code, as I mentioned. It was supported by a considerable number of witnesses who appeared before the Senate Committee on Euthanasia, including prominent scholars such as Edward Keyserlingk and Margaret Somerville. It is part of the official teaching of the Catholic Church, which defines euthanasia as an act or omission aimed at relieving suffering.

If one accepts that the omission of treatment can sometimes be homicide, there is still the large and important question of when it is homicide and when it is not. That can be a difficult question to face, but the difficulty of applying some principles should not lead us to disregard the importance of the principles themselves. I suggest that the committee give further consideration to the question of undertreatment and denial of treatment. I should like to see the committee clarify that non-voluntary euthanasia can take place by act or omission. I should like to see the committee's approach to the withholding and withdrawal of treatment address the question of whether the omission of treatment can sometimes be homicidal. In any case, I wish the committee well in your deliberations.

The Chairman: Thank you, Mr. Ryan. Now we will hear from Mr. Schadenberg.

Mr. Alex Schadenberg, Executive Director, Euthanasia Prevention Coalition of Ontario: Honourable senators, on February 23, 1994, the Special Senate Committee on Euthanasia and Assisted Suicide was appointed to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide. That committee heard testimony for 14 months from more than 150 witnesses from all across Canada, while also receiving hundreds of additional letters and briefs. The result of that extensive review of the issues was its final report, "Of Life and Death."

The Euthanasia Prevention Coalition of Ontario recognizes the awesome task that existed in producing that final report. We hope that some of the recommendations will eventually be implemented, but we also find fault with the logic behind some other recommendations.

Three of the recommendations we oppose deal with the issue that we have been asked to address today. These recommendations surround issues regarding compassionate homicide. We define "compassionate homicide" as the deliberate killing of someone by action or omission in order to end that person's suffering. The Special Senate Committee on Euthanasia unanimously recommended that the Criminal Code be amended to provide for a less severe penalty in cases where there is an essential element of compassion or mercy.

The committee recommended that Parliament consider certain options. One option was that a third category of murder could be created that would not carry a mandatory life sentence but rather would carry a less severe penalty. Or a separate offence of compassionate homicide could be established that would carry a less severe penalty. The essential elements of compassion and mercy must be clearly and narrowly defined in order to limit the cases in which a less stringent sentence would be available. The committee did not offer a definition that would be suitably narrow and acceptable to Parliament; there was no definition. Parliament would determine the appropriate penalty.

There was also a majority recommendation that voluntary euthanasia remain a criminal offence but that the Criminal Code be amended to allow for a less severe penalty, similar to that provided for non-voluntary euthanasia in cases where there is an essential element of compassion or mercy. We applaud the part of this recommendation to preserve the Criminal Code offence with respect to voluntary euthanasia. We oppose the less severe penalty where there is the essential element of compassion or mercy. That recommendation is probably not on the table today because it did not receive unanimous support, but I address it today in any event. The "less severe penalty" portion of the recommendation probably had unanimous approval, knowing that the minority recommended that, if voluntary euthanasia remains a criminal offence, the Criminal Code be amended to provide for a less severe penalty similar to the penalty for non-voluntary euthanasia.

There is a third and unanimous recommendation that the Euthanasia Prevention Coalition of Ontario sees as connected to the compassionate homicide issue. That is the recommendation in chapter 5 concerning artificial hydration and nutrition, which the committee agreed constituted treatment. Thus the withholding or withdrawal of artificial hydration and nutrition is acceptable in some circumstances, as is the withholding and withdrawal of artificial respiration, blood transfusions and CPR. We connect that recommendation to compassionate homicide because unethical family members, friends and medical caregivers can use the licence of that recommendation to starve an incompetent person to death, especially when the incompetent person is persistently living against their wishes or the wishes of others or is costing others too much either by monetary, emotional, psychological or social means. I will comment on that later.

We oppose any changes to the Criminal Code that would allow for a lesser sentence for compassionate homicide. We believe that that concept would essentially lead to a situation where all human beings are not equal under the law and would not be equally protected. We also believe that any compassionate homicide law would be devised to deal with hard cases such as the Latimer case. Whereas we recognize that these cases have particular difficulties with respect to conviction, we also recognize that hard cases make bad laws. Adjusting the Criminal Code to deal with these hard cases will open up a series of new problems that will be far worse than the current dilemma.

To illustrate new problems occurring from establishing a compassionate homicide exemption in the Criminal Code, let us consider two optional changes to the Criminal Code. The first option is a broadly defined compassionate homicide exemption in the Criminal Code equally applied to all homicides so long as one claims and has reasonable proof of compassionate motives for one's act. This would involve the creation of a new class of third degree or compassionate homicide, eliminating minimum penalties only for homicide that is motivated by compassion or mercy. There are two serious problems with this approach.

The first problem is that motivation is not observable. We cannot determine the motivation of an act in the same way we are able to determine the facts of an act. This is accentuated by two principles of our Canadian justice: guilt must be proven beyond a reasonable doubt and defendants cannot be required to testify at their own trials. Therefore, any time the defence claimed that their client was motivated by compassion, the prosecution would be forced to prove beyond a reasonable doubt that compassion was not the motive and to do so without having the opportunity to examine the defendant in court. This would result in a disproportionate number of cases claiming to be compassionate homicide. Therefore, family members or friends who kill their wealthy, elderly, disabled or incompetent loved ones could claim a motive of compassion, and it would be very difficult to prove that the real motive was, for example, greed.

The second problem is that compassion can be broadly defined. What is compassion? In what situations would the homicide be considered to be compassionately motivated? On the Internet at www.dictionary.com, we found three definitions of compassion. The first was:

Deep awareness of the suffering of another coupled with the wish to relieve it.

Here pity was listed as a synonym. A second definition was:

Literally, suffering with another; a sensation of sorrow excited by the distress or misfortunes of another; pity; commiseration.

The third entry defined compassion as:

a deep awareness of and sympathy for another's suffering; the humane quality of understanding the suffering of others and wanting to do something about it.

Again, pity is a synonym.

Since compassion is usually linked to the suffering of another person, what kinds of suffering would be viewed as worthy of a lesser sentence when the suffering is relieved by killing? Would our courts be capable of limiting it to cases of physical suffering when mental, emotional, spiritual and psychological suffering are equally devastating? What about the depressed? Is their mental suffering not equal to the physical suffering of others? We are concerned about those persons because their cries for help might be mistaken for requests for death.

After years of precedent-setting court decisions, the application of compassionate homicide might expand into a myriad of situations. I use these examples: Would a poor mother who drowns her newborn out of compassion for the child based on its prospects of a low quality of life qualify for a compassionate exemption from the minimum sentence? What about a teenager who dumps her newborn in the garbage because she did not want it anyway? Would both of them have grounds to be treated under the compassionate homicide law? Would the compassionate homicide law be abused by defendants who are exceptionally skilled at spinning an emotional web in the courtroom, or would it just be abused by killers who are wealthy and capable of affording the best possible legal defence? Would this further add to the problem of unequal treatment for poor and marginalized people in society?

We can imagine the possible abuses that could occur if a broadly defined compassionate homicide law were reality, but we can also recognize the new difficulty that would occur for the prosecution to prove that the defence was inappropriately using a compassionate grounds defence for a murderer who wished to receive less than a minimum sentence. We believe that the Special Senate Committee on Euthanasia and Assisted Suicide included within its recommendation that the essential elements of compassion and mercy must be clearly and narrowly defined in order to limit the cases in which a less stringent sentence would be available, because it recognized the pitfalls of a broadly defined definition of compassion.

We examined this first option so that we could compare it to the second option, the one that the Senate committee is proposing, which is a narrowly defined compassionate homicide exemption in the Criminal Code applied only to homicides where proof exists beyond a reasonable doubt that the victim was suffering and the act was compassionately motivated. There are two serious problems with this approach.

The first problem is that this approach shares the same problems as the more broadly defined compassionate homicide law for the prosecutor to disprove a claim of compassionate motivation. The problem of being unable to observe or prove motivation remains. The problem of the definition of compassion still exists. The problem of precedent-setting court cases widening the interpretation of compassionate homicide still exists. In fact, all the arguments apply here as in the more broadly defined law, except that the cases have simply been restricted to a more particular group of victims.

The second problem is that it assumes that if someone kills a person who happens to have a severe disability, claims of compassion may be believable in a court of law and the burden of proof will be with the prosecutor to prove otherwise. Therefore, murderers of disabled or other vulnerable people, whether the victims are physically disabled, mentally incompetent, emotionally or psychologically unfit, or age impaired, will be treated differently than murderers of otherwise healthy people, even if their acts are identical. This is particularly distressing given that there is significant proof already that people with disabilities and other vulnerable persons already experience higher rates of violent attacks against them and that vulnerable people in general are not valued equally as dignified, otherwise healthy members of our society.

We believe that the disabled and otherwise vulnerable persons in society are not in need of less protection in society but in fact of more protection. We are also under the opinion that any compassionate homicide law, even if narrowly defined, will result in a challenge to its constitutionality and will be struck down by the Supreme Court of Canada based on providing lesser protection for citizens with disabilities than for other citizens. Section 15 of the Charter of Rights and Freedoms states that:

Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

When examining the report "Of Life and Death," the primary reason given to suggest that lesser sentences are necessary for cases of compassionate homicide seems to be summed up in this type of argument: Since it is difficult to convict cases of euthanasia under first or second degree murder because the prosecutor and jury believe the mandatory minimum sentences are too harsh, a less severe penalty should be imposed in cases where an element of compassion or mercy is involved. The comment that best exemplifies that reasoning was made by Professor Bernard Dickens of the Faculty of Law at the University of Toronto when he explained:

The limitation of the existing murder provision is that by the Criminal Code the minimum punishment for murder is life imprisonment. We distinguish first degree murder from second degree murder not by reference to the sentence but by reference to eligibility for parole; that is, those convicted of first degree murder cannot, with exceptions, be eligible for parole in less than 25 years. Those convicted of the only alternative, second degree murder, are not eligible for release in less than 10 years. Prosecutors at times seem to find this too harsh, and juries again seem to have reservations about imposing sentences they consider excessive.

We recognize that this argument might be used to defend the lives of vulnerable persons by stating that if you kill a disabled person, even with a compassionate motive, you will be punished, even if it is a lesser punishment, but we also recognize in practice that people who kill another person, even with a compassionate motive, tend not to do it with the intent of getting caught. Thus, when they are caught, the use of a compassionate homicide law will become the recourse to getting the least possible sentence for the crime.

We are also concerned with the argument that the sentence is too harsh and therefore it is difficult to convict. Since prosecutors and juries do not seem to have a problem with giving the mandatory minimum sentence for murdering an otherwise healthy person, that argument advances the belief of the disability community that their lives are less valued by society. We believe that because the disabled, the elderly, the chronically ill, the depressed and other vulnerable persons are often dependent on a trust relationship with their caregivers, they are probably in need of more protection rather than less protection by the courts.

To prove our point, we decided to look at the Internet again, at www.dictionary.com, where we found two definitions of vulnerable. The first source defined vulnerable as susceptible to physical injury; susceptible to attack; open to censure or criticism; assailable; and likely to succumb, as to persuasion or temptation. The second defined it as susceptible to attack; susceptible to criticism or persuasion or temptation; capable of being wounded or hurt; and susceptible to physical or emotional injury.

That would imply that vulnerable people are particularly susceptible to being hurt, used, abused or, in this case, killed, even for compassionate reasons. A natural conclusion for this committee would be that, in a just state, the vulnerable must be specially protected due to their having special needs. When we recognize an area where the vulnerable are not being effectively protected, then it becomes incumbent upon lawmakers to further those protections to ensure that abuses are not occurring. The fact that they are vulnerable implies that they are incapable of effectively defending themselves, therefore government must specially protect them. To suggest lesser sentences for people who kill disabled or other vulnerable people implies the opposite of what a just society should be proposing, because it results in less protection for those who need it most.

In our introduction we referred to the recommendation regarding lesser sentences for those who participate in voluntary euthanasia. We consider that recommendation to be part of our concern in relation to compassionate homicide because it would also create a situation where there is less protection for the disabled, the elderly, the chronically ill, the depressed and other vulnerable persons. If someone is caught in the act of euthanasia, they will instantly claim it to be a case of compassionate homicide. How can this be proven? Unethical caregivers who take the power of death into their hands may choose to kill others because they have decided the time has come for those people to die. If a compassionate homicide law existed, it would be difficult to prove beyond reasonable doubt that those people did not request death or that those people were depressed and crying for help.

We believe that, even in the case of lesser sentences for voluntary euthanasia, the disabled and other vulnerable persons would have less protection under the law. That would result in more deaths for supposed compassionate motives of the elderly, the disabled, the chronically ill and other vulnerable persons.

In our introduction we also referred to the committee's recommendation concerning the withholding or withdrawal of artificial hydration and nutrition as treatment. The withholding and withdrawal of them is in some circumstances as successful as the withholding and withdrawal of artificial respiration, blood transfusions and CPR, and is connected to compassionate homicide. The reason we connect this recommendation to compassionate homicide is that unethical family members, friends and medical caregivers could use the licence of this recommendation to starve an incompetent person to death, especially when the incompetent person is persistently living or costing others too much, either by monetary, emotional, psychological or social means.

There are several modern examples of unethical caregivers who are responsible for the deaths of many of their incompetent patients. Since the release in June 1999 of the new British Medical Association guidelines on withdrawal and withholding of assisted feeding, more than 60 cases that have been reported to the authorities and are now being investigated maintain that patients are being denied food and drink with the intention of causing them to die. The proportion of abuse that has arisen in Britain in such a short period of time has led to the House of Lords condemning, on December 15, 1999, the withholding of food and drink from patients. It has led to the successful introduction of Mrs. Ann Winterton's Medical Treatment (Prevention of Euthanasia) Bill in the British House of Commons.

That may seem like an interesting claim. However, if you consider the facts, you will recognize how the withdrawal of assisted feeding can lead to the intended death of incompetent patients. For instance, on December 2, 1999, the family of Florence LaDouceur filed a lawsuit against the Villa Maria nursing home in Windsor, Ontario, for attempting to starve and dehydrate their mother when she was 93 years old. Mrs. LaDouceur did not have a terminal condition. She was capable of eating and drinking with normal assistance. Her daughter Thelma, who had the power of attorney for her mother's personal care, was not consulted in the decision to stop providing normal food and fluids for her mother. Florence LaDouceur lived at the Villa Maria between October 26, 1998, and March 14, 1999. Her family removed her from the nursing home and brought her to the Hotel Dieu/Grace Hospital where she was fed, rehydrated and treated for pneumonia. She was very near to death when arriving at the hospital. She was discharged from the hospital and moved into the home of her daughter Thelma on March 22 -- some eight days later -- where she had made almost a complete recovery. The lawsuit was brought by the family to set a precedent that it is wrong to injure or kill people through starvation or dehydration and to redress the damages that were done to their mother. Even though Florence LaDouceur died on January 14, 2000, the lawsuit is continuing in her memory to protect the lives of other vulnerable people who are dependent on institutional care.

We believe that it is important to define medically assisted nutrition and hydration as normal care and not as treatment. The reason is that in common law it is properly recognized that a patient can always refuse treatment or request that treatment be withheld or withdrawn, especially when it becomes futile or particularly burdensome. Defining assisted feeding as treatment opens the door to its withdrawal from incompetent patients who are not otherwise dying. Abuses can run rampant, and vulnerable people will be killed without their consent. One of the most horrific ways to die is through starvation and dehydration.

When assisted feeding is defined as normal care, then the measure of feeding is based on want or need. If a patient is dying and has little need for assisted feeding, then he or she would receive a minimal feeding. If the patient has no need for assisted feeding, usually due to nearing the end of life, then assisted feeding would cease. We recognize that not all family members, friends and medical caregivers are ethically motivated. Therefore, we advocate protections for the vulnerable, rather than lesser protections.

If medically assisted nutrition and hydration is defined as medical treatment, the preferred way of removing persistently living incompetent patients from financially strapped nursing homes and medical care facilities will be through the withdrawal and withholding of assisted feeding. The excruciating symptoms experienced by starving people will be covered up by analgesics and death will be recorded as being from natural causes. The vulnerable will be given a life sentence rather than cared for in a dignified manner until their dying day. Compassionate homicide would thus be unofficially approved within policy in Canada, resulting in abuse of our laws and our values. The only difference between intentionally starving or dehydrating a person against their wishes or using potassium chloride to kill that person is that using potassium chloride at least provides a quick death.

The Euthanasia Prevention Coalition of Ontario believes that any change to the law to allow for a compassionate homicide exemption from the mandatory minimum sentence would lead to a further erosion of protections for vulnerable people in society and would result in more killing of vulnerable persons, particularly the physically and mentally disabled, the elderly, the chronically ill and the depressed. It would also lead to abuses of the present system whereby defence lawyers, when possible, would attempt to put forward a plea of compassionate homicide with the hope of lessening the sentence for their clients or to shift the burden of proof to a greater level to the prosecution. It would create a two-tier system in which those who kill vulnerable persons will be treated more leniently than those who kill otherwise healthy people. It would also result in an expensive challenge to the Supreme Court of Canada based on the provisions of section 15 of the Charter of Rights and Freedoms.

We believe that the Government of Canada should not create a new compassionate homicide law but, rather, should introduce a policy of stricter sentences for people who kill vulnerable persons, particularly the physically and mentally disabled, the elderly, the chronically ill and the depressed. That would establish a precedent that vulnerable people have special needs and therefore need special protection. It would also remind unethical family members, friends and medical caregivers that the trust relationship that they have must be upheld and protected and not abused.

We also believe that hospice care, palliative care and care of other vulnerable persons within Canada should be enhanced and promoted. Canada has some of the best palliative care and care for the disabled in the world. Is it not a better response to build upon the supportive and caring environment of palliative care and care for the disabled rather than lessening the sentences for those who kill the vulnerable? If the reason for killing a disabled child is the lack of care available to the parent, are we not also akin to the killing of that child?

We believe that dignity is not found in one's personal autonomy over death but, rather, in one's experience of love and caring with others. We recognize that compassion is suffering with another, but our reaction of doing something for them, of granting the other dignity, is by caring for them. True compassion leads to sharing another's pain; it does not kill the person whose suffering we cannot bear. The true test of our dignity is not how we achieve our self-actualization but, rather, how we serve the needs of others and create a society that equally respects the lives of everyone, including the disabled, the dying, the suffering, the depressed and all other vulnerable persons.

Ms Jakki Jeffs, Executive Director, Alliance for Life Ontario: Madam Chair, I come with the thanks of our board and our 40,000 members in Ontario. I also bring to the table the voices of Manitoba, Newfoundland, Labrador and Prince Edward Island. Unfortunately, our legal counsel could not release himself from his responsibilities to be here. We generally work as a team. He speaks to the head and I speak to the heart. Thus, I am having to do both today.

First, I should like to deal specifically with compassionate homicide.

Professor Dick Sobsey said:

Failure to provide equal protection of the law is the worst form of discrimination.... Giving any lesser penalty will put thousands of people with disabilities in greater danger of death and violence.

We do not support any amendments to the Criminal Code that would provide for a less severe penalty in euthanasia cases where there is the essential element of compassion or mercy, for the following reasons: first, it would breach Parliament's duty under the Charter of Rights and Freedoms, section 15, to provide equal protection of the law to physically and cognitively impaired people; second, it would be an abdication of Parliament's responsibility to protect human life; third, it would encourage health care providers and family members upon whom vulnerable persons may depend for their very lives to contemplate the unthinkable -- to kill their loved one or patient; and fourth, the parameters of appropriate compassion cannot be adequately defined to prevent widespread abuse.

Subsection 15(1) of the Charter reads as follows:

Every individual is equal before and under the law and has the right to the equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

We believe that the proposal for a lesser offence of compassionate homicide is aimed directly at people with disabilities. We can conceive of no other category of person for whom compassion could logically lead another person to conclude that they were better off dead. We wholeheartedly agree with Professor Sobsey's assessment that this proposal, if implemented, would represent the worst kind of discrimination. There is much concern these days about the Canadian health care system becoming a two-tiered system. This proposal would create a two-tiered justice system: one for able-bodied and able-minded persons and one for those living with disabilities.

Thomas Jefferson once wrote:

The protection of human life, and not its destruction, is the primary purpose of good government.

More recently, the late Mr. Justice John Sopinka, speaking for the majority of the Supreme Court of Canada in the Rodriguez case, said:

The longstanding blanket prohibition [against assisted suicide] which fulfils the government's objective of protecting the vulnerable, is grounded in the state interest in protecting life and reflects the state policy that human life should not be depreciated by allowing life to be taken.

The compassionate homicide proposal would therefore, in our view, amount to an abdication of that state responsibility.

The proposal also reflects a very naive view of human nature and disregards the important role the law can play in influencing people to do reflexively the right thing in a time of moral crisis, as well as the societal need for moral absolutes. We agree with Professor Sobsey's comment that a lesser penalty for compassionate homicide would likely weaken the healthy societal inhibition supplied by the absolute prohibition of assisted suicide and put thousands of vulnerable persons at risk. Do we really want Canadians to go through some sort of seven-step decision-making process they learned in a values clarification class in high school in determining whether or not they feel justified in doing away with Granny or little Johnny? Or would our society be better off if most of us just refused even to contemplate the unthinkable?

In The War Against the Family, author William Gairdner quite eloquently explains that all well-functioning societies in history have recognized the need for automatic moral response systems He says that:

The great moral systems of the world ... work well precisely because they provide absolute standards ... The wisdom common to such systems ... is that mankind is by nature imperfect, and the great mass of human intelligence is far too embroiled in the hurly-burly of life's voyage to embark on moral research at every street juncture; therefore, a moral compass is necessary. It is because we are often so morally blinded by the exigencies of daily life, and by our own emotions, that we lean with relief on wise moral absolutes ... After all, no great moral system in history has ever had the individual as its primary moral focus.

The obvious problem with a reduced penalty for compassionate homicide is that it invites people in a moral crisis over life and death to consider their own subjective opinion as to whether or not their loved one or patient is living a life worth living. To recognize that this is a recipe for disaster is only to accept the reality that the human capacity for self-deception and rationalization of one's own immoral behaviour is virtually limitless, especially when self-interest becomes part of the equation.

This concern was perhaps best articulated by Mr. Justice McKenzie in the well-known case of Stephen Dawson, decided in 1983. He said:

I cannot accept [the parents'] view that Stephen would be better off dead ... This would mean regarding the life of a handicapped child as not only less valuable than the life of a normal child, but so much less valuable that it is not worth preserving. I tremble at contemplating the consequences if the lives of disabled persons are dependent upon such judgments.

We also tremble at the consequences. We recognize that keeping the law as it is is no panacea. The Dawson case, the Latimer case, and the more recent case of Lisa Thompson, who was given a mere slap on the wrist by the courts for attempting to kill her disabled child, prove that the law alone cannot induce everyone to do the "right thing" in times of emotional and moral stress. However, we believe that the law as it is remains a useful tool in holding back the tide of moral relativism in our culture.

Finally, it is our position that any proposed parameters for the lesser penalty for compassionate homicide would not be effective in preventing widespread abuse. In 1994, the British House of Lords' Report of the Select Committee on Medical Ethics concluded as follows:

We have considered suggestions that, although deliberate killing should remain a criminal offence, killing to relieve suffering (that is deliberate killing with a merciful motive) should not be murder but that a new offence of "mercy killing" should be created. At present the offence of murder embraces acts of deliberate killing which vary enormously in their character and which most people would agree vary "in degree of moral guilt." The significant question however is whether the law could or should make a distinction between them. We consider that it should not. To distinguish between murder and "mercy killing" would be to cross the line which prohibits any intentional killing, a line which we think it is essential to preserve. Nor do we believe that "mercy killing" could be adequately defined, since it would involve determining precisely what constituted a compassionate motive. For these reasons we do not recommend the creation of a new offence.

We endorse those comments of the British House of Lords. Just as in the case of proposals to legalize physician-assisted suicide, to think that adequate safeguards can be built into such a system is utopian folly. As someone once said, "No society in history has ever been successful at holding the line at `a little' killing."

If I may, I will appeal to your hearts for the last five minutes of my presentation. In Appendix A, you will see a colleague and very dear friend of mine, Mark Pickup. In today's society, Mark would be, like those who have disabilities of one sort or another, defined by what he cannot do. However, I will introduce to you a family man, a man who in 1984 was diagnosed with multiple sclerosis, a man who is an active anti-euthanasia activist. He has a heart for life. If he were here today, Mark would tell you that he is only here because his wife valued him when he did not value himself. He would explain to you that people need time to grieve, cry, and say outrageous things without being held to death wishes, and that after a period of adjustment most of them rediscover the joy of living. He would tell you, as he said to the committee in 1995:

I ask that we resist this present darkness of entertaining euthanasia and assisted suicide as a solution. Civilized societies have no place for that. Let us stop all this talk of killing and recommit ourselves to each other, to life, to independence.

He would reflect with you and tell you that this is a scary time to be a person with a disability in North America. His question to us is this: "Will I be welcome in society?"

He would state strongly that he was no less a man after years of degenerative disability than before. He said that his humanity remained intact because he bore the image of God; neither disability, dementia, deformity, incurable illness nor age would strip that image from him. Next year he might be bedridden or paralyzed, but he felt that no one could disenfranchise him from his rightful place as a creation of God.

As you look through that section, you will come face to face with children who have been killed in this country because people did not value their lives. For their sake, for the sake of justice, we must not allow our law to be changed to give anyone the right to take the life of those who are considered less than those of us who are able-bodied. We cannot allow that law to be changed.

In the interest of time, I will close, but without really saying everything I wanted to say. For children like Katie Lynn Baker, who was starved to death and neglected by her mother, for Antoine Blais, who was drowned by his mother, for Tracy Latimer, whose father, for 11 days, checked out different ways that he would kill her, whether he would shoot her, burn her or give her Valium, for children like Lisa Thompson, whose mother attempted to give her an overdose of barbiturates, for the police officers and for the lawyers who will talk about these acts and call them "acts of love," we throw out a challenge. I throw out that challenge in a last very short quote from Teague Johnson, and you have him in the appendix. Teague died in 1998. When Teague heard about Tracy Latimer's murder, he wrote on his spelling boards these words, and Teague was 11 at that point and had extreme cerebral palsy:

I can't walk or talk or feed myself. But I am not "suffering from cerebral palsy." I USE a wheelchair, but I am not "confined" to a wheelchair. I have pain, but I do not need to be "put out of my misery."

My body is not my enemy. It is that which allows me to enjoy Mozart, experience Shakespeare, savour a bouillabaisse feast and cuddle my Mom.

Life is a precious gift. It belongs to the person to whom it was given. Not to her parents, nor to the state. Tracy's life was hers to make of it what she could.

My life is going to be astounding.

We place before you these comments and quotes and our grave concerns for any change or any addition of a third category of homicide. We have covered all the other topics and unanimous recommendations and have tried to provide you with some of our research, including our own power of attorney for health care which you will find in the back of our presentation today. I am sorry that I will have to leave before questions, but I thank you very much for listening to us today.

The Chairman: Thank you, Ms Jeffs. Next we have two witnesses from the Care-in-Dying Coalition.

Mr. Mark Cameron, Coordinator, Care-in-Dying Coalition: The Care-in-Dying Coalition/Canadian Coalition Against Euthanasia is a coalition of 27 organizations from across Canada representing a wide variety of religious denominations, community groups and health care related organizations.

We have another category of membership, called "endorsers", that includes prominent citizens who are experts in their field, such as Dr. Ayoub, who is the medical oncologist at the Notre Dame Hospital in Montreal, professor of medicine at the Université de Montréal and McGill University, and director of teaching at the University Hospital Centre. Dr. Ayoub will offer us his perspective as a palliative care practitioner.

The coalition believes that every person has intrinsic dignity and worth and advocates compassionate, just and respectful care for persons who are dying. Those convictions lead us to oppose efforts to legalize euthanasia and assisted suicide and to strongly advocate increased access to palliative care and respectful end-of-life treatment for all persons.

The Care-in-Dying Coalition was formed in 1994 before the "Of Life and Death" report and we have closely followed the report and the reception it has received since then. In our view, while there are some problematic areas in the 1995 report, it contains many excellent recommendations in the area of end-of-life care and is in many ways a landmark document with excellent research.

It is appropriate to follow up on the report and see how governments and others have responded to its unanimous recommendations. However, we are concerned that the emphasis of the report should be on the unanimous recommendations in the area of palliative care, rather than on contentious legal changes that will be seen through the lens of euthanasia and assisted suicide. Why is it that, in discussions of end-of-life issues, the euthanasia and assisted suicide tail seems to wag the palliative care dog? Put another way, why is Dr. Jack Kevorkian a household name, whereas Dame Cicely Saunders, who founded the modern palliative care hospice movement, is almost unknown outside of professional circles? Especially considering that most of us, at the end of our lives, would much rather be in the hands of a Dr. Saunders or a Dr. Ayoub than a Dr. Kevorkian.

The Care-in-Dying Coalition is glad that, in its update, the Senate has decided to concentrate on the unanimous recommendations of the "Of Life and Death" report, which contained many positive recommendations in the area of palliative care, and avoid reopening the contested debate on the euthanasia and assisted suicide issues. We hope that in writing its report the committee will maintain that balance and devote far more of its attention to the palliative care issues than to reopening possible changes to the Criminal Code.

The "Of Life and Death" report made unanimous recommendations in several important areas: palliative care, pain control and sedation, withholding and withdrawing of life-sustaining treatment, and advance directives. The Care-in-Dying Coalition supports the vast majority of the report's recommendations in these areas, but we know that there has been little progress in implementing them, especially when it comes to providing palliative care and proper pain control and sedation techniques.

The committee called for governments to make palliative care a top priority in the restructuring of the health care system. In fact, the opposite seems to have happened. Due to health care cuts of recent years in many provinces, palliative care seems to have been a victim of disproportionate cutting and only four provinces have palliative care as a core part of their medical system.

Training aspects of palliative care need to be increased. Yet we note that the majority of medical schools in Canada still do not offer a certificate in palliative medicine created by the Royal College of Physicians and Surgeons and the College of Family Physicians of Canada, again primarily due to lack of funding.

The committee called for an integrated approach to palliative care. Yet, the evidence is that outside of a few urban centres, there is little coordination between palliative care centres in other parts of the health care system; and, perhaps more curiously, there has been very little progress in the area of home care, which is essential for patients who want to be able to die in their own homes, surrounded by family.

The committee recommended that research into palliative care, especially pain control and symptom control, be expanded and improved. Again, the response has been underwhelming. The major funding bodies, such as the Medical Research Council and the National Cancer Institute of Canada, have provided only a tiny fraction of funding for palliative care research, and the new Canadian Institutes of Health Research have no programs in the area of end-of-life or palliative care.

Only in one area, the creation of national standards, does there seem to have been significant progress. Here the credit must go to the professional bodies, such as the Canadian Palliative Care Association, that have worked to develop the standards with little support from Health Canada or other departments of health.

This overall lack of progress in the area of palliative care is unacceptable and, we believe, contributes to a dangerous false dichotomy in this debate, where many people feel that assisted suicide or euthanasia is the only alternative to dying a painful, miserable death.

In the areas of pain control, sedation, and the withholding and withdrawal of life-sustaining treatment, the "Of Life and Death" report recommended that the Criminal Code of Canada be changed to clarify the legitimacy of providing pain relief, even where it may have an unintended effect of hastening death, and the circumstances under which treatment may be legitimately withheld or withdrawn. We acknowledge that there may be ambiguities in the existing Criminal Code that could use clarification, and so the coalition supports the intent of efforts such as Bill S-2 to clarify the withholding and withdrawal of treatment in certain circumstances and the proper use of medication to alleviate pain and to clarify how that is distinct from euthanasia or assisted suicide. However, we have serious concerns about the wording of the current Bill S-2, which we feel in certain circumstances may be interpreted as permitting euthanasia.

On another legal recommendation of the Senate report, the committee unanimously recommended that the Criminal Code be amended to provide for less severe penalty in cases where there is the essential of element of compassion or mercy. The Care-in-Dying Coalition opposed and continues to oppose that recommendation of the Senate. While there may be valid reasons for reviewing mandatory sentencing provisions, it is extremely important to ensure that the changes apply to all cases of second degree murder and not only to cases where the motive is alleged to be compassionate, similar to what Mr. Scher said in his presentation earlier.

On January 30, 1998, in light of the debate over the Latimer case, the Care-in-Dying Coalition sent a letter to the Honourable Anne McLellan, urging that the law not be changed in this respect, and seven members of the Care-in-Dying Coalition are currently intervenors before the Latimer sentence in the appeal in the Supreme Court of Canada.

While the coalition does have concerns about some of the legal issues raised by the report "Of Life and Death," and we are addressing those concerns in fora such as the Bill S-2 debate and the Latimer appeal, we say that our greater concern by far is that the debate over these contentious, divisive legal issues should not overshadow the imperative for action in the area of palliative care.

We think that the relevant recommendations to this committee of Dr. Chochinov of the Department of Psychiatry at the University of Manitoba were excellent and, with slight modifications, we would like to reiterate them as our own.

The Senate should support designated funding through the Medical Research Council, the Canadian Institutes for Health Research or other bodies to support palliative care training, service delivery and end-of-life research. All medical training facilities and licensing agencies should be required to provide training and assessment in the area of end-of-life care.

All health care facilities, including hospitals and long-term care facilities, should be required to demonstrate appropriate standards in end-of-life care. Health Canada should be held accountable for an annual report on the status of and progress of end-of-life care on a national basis.

We particularly like the recommendation that the name of the report should be "The Senate Report on End-of-Life Care in Canada." We think that that puts the emphasis where it should be. It would prevent the media from distorting this debate. Rather than focusing on euthanasia and assisted suicide, it should focus attention on the treatment of dying patients.

We also think that many of the more detailed recommendations of the Catholic Health Association of Canada -- one of our member organizations who will appear here tomorrow -- are excellent and complement some of those basic recommendations.

We believe that there is a significant crisis in the lack of access to palliative care in this country. It is that crisis, along with media sensationalism, that is fuelling calls for euthanasia and assisted suicide. We oppose euthanasia and assisted suicide as incompatible with human dignity and respect for human life. We are concerned to affirm the worth of the human life of the most vulnerable members of our society, such as the sick, the disabled and the elderly, and to ensure that there are effective advocates for the rights of those who cannot speak for themselves. We call for the Senate to deal with the problem of end-of-life care at its root by coming forward with a strong report urging that their excellent, unanimous recommendations in the areas of palliative care and pain control be acted upon by governments as an urgent priority.

With that I should like to turn the podium over to Dr. Ayoub.

[Translation]

Dr. Joseph Ayoub, Oncologist, Institut du cancer de Montréal: My presentation will focus on the progress and shortcomings of palliative care in Canada.

Over the past few years, and further to the recommendation made by the Special Senate Committee on Euthanasia and Assisted Suicide, and by governments, to give priority to palliative care programs in restructuring the health system, we are witnessing the growth of institutional and non-institutional palliative care units throughout Canada.

Some hospital centres have, however, adopted a model which is not based on any geographic unit and which focusses more on consultative services provided by an expanded interdisciplinary team. However, the objective remains the same: to ensure that people, as they approach the end of their lives, are surrounded by human warmth and kindness while being given competent medical care to relieve physical suffering and any other major symptoms associated with their primary disease. The current challenge lies in establishing an optimal continuum of care and services to enable us to take the best comprehensive approach with the dying.

The Senate Special Committee had, in fact, recommended the adoption of an integrated palliative care approach. This has yet to be implemented. As a result, the coordination of care between hospital centres and local community service centres is not what it should be. Outpatient palliative care services are still in the process of being developed. In addition, home care resources for those individuals who wish to die at home are often inadequate. For example, respite care for informal caregivers is not satisfactory.

At any rate, access to the various services varies from one place to the other, creating regional disparities. As a result of these shortcomings, emergency services are often overtaxed and, consequently, many people spend their final days in the short-term-care ward or in the extended-care ward. In order to rectify the problem, we have made several suggestions, particularly with respect to the establishment of palliative care day centres and optimal home care for patients who are losing their autonomy.

As for the medical research and training activities advocated by the Senate Special Committee, these are the responsibility of the supra-regional and university units. For example, the Quebec cancer program stipulates the following supra-regional criteria: the participation in research activities, the responsibility for teaching so as to be at the leading edge of clinical therapeutic discoveries, and the obligation to make its expertise readily available to regional or local practitioners called upon to provide services to the dying.

Canadian universities have acknowledged that there must be an improvement in professional health training as regards all aspects of palliative care. Thus, for example, since July 1999 the University of Montreal has been requiring its family medicine residents to take four week's training in a palliative care unit. Moreover, the College of Family Physicians of Canada and the Royal College of Physicians and Surgeons of Canada as of July 1999 were delivering certificates of competence in palliative medicine for residents taking one year's training in an accredited centre.

Finally, palliative care training courses and conferences are to be found everywhere in Canada thus allowing the majority of health professionals to acquire the knowledge necessary to take care of those patients.

I would like to conclude by mentioning that the palliative care experience has led us to be aware of one fact: only love allows one to honour the dignity of human life. The person who is going to die does not only need our medical proficiency, that person also wants someone present, affection, an outstretched hand. If we can share our hope with them, serenity sets in and death is no longer feared. For that to occur, the health professionals and family members must be ready to make the effort and spend the time necessary to accompany the person to the end of life's journey. If you can manage that, then the question of euthanasia becomes futile.

As Ms Thérèse Vanier mentioned, when the attending physicians recognize there is nothing more to be done in the way of active treatment, then everything remains to be done.

[English]

The Chairman: Thank you. Mr. Cameron, before I move on to the next witness, you know that I am the person who initiated Bill S-2.

Mr. Cameron: Yes, I do.

The Chairman: I also want you to know, very sincerely, in front of the television cameras, that I do not want Bill S-2 to be anything but the very best it can be. I would welcome any amendments that come forward.

Mr. Cameron: We have a presentation on Bill S-2, which I will certainly circulate to all committee members.

The Chairman: Thank you very much.

We will hear next from Dr. John Mahony. Thank you for coming on such short notice.

Mr. James Mahony, Alberta Life Foundation: Honourable senators, I want to say that I am very impressed by the presentations today. I say to my colleagues that they are a hard act to follow.

I will concentrate on a question that Peter Ryan asked: Can a finding of compassionate homicide result from an omission? That is an issue with which I also tend to concur. In my view, the report was perhaps a bit short in exploring that particular issue. In fact, I would characterize it by saying that, in my view, that will be the battleground. There is an immense scope for abuse there. It has been explained to me a number of times that this area is not black and white, that there is a lot of grey, and I appreciate that.

I will talk today in reference to one particular recommendation the committee made in the report -- the unanimous recommendation that the Canadian provinces that had not passed advance directive legislation do so. In relating this to the issue of compassionate homicide, the scope for passive euthanasia with respect to advance directives is great. I will go into that a little more.

The medical community, the health care community, and the people generally in hospitals and nursing homes that I have talked to approved the use of advance directives -- personal directives as they are called in Alberta -- I would say close to 100 per cent. I represent the Alberta Life Foundation and my own opinion, which is perhaps not a large segment of the population, but I do not hesitate to say that my position is considered heresy in the medical community. I have spoken to many doctors in Western Canada, particularly in Alberta, and I found very few who agree with my position. I believe that advance medical directives, whether they are called personal directives or whatever term is used, are a mistake. I believe that ultimately the result in many cases will lead to the practice of passive euthanasia.

By passive euthanasia, I am referring to of course what Mr. Ryan spoke of, which is essentially the dehydration of patients and their ultimate death. The whole issue of nutrition and hydration and characterizing nutrition and hydration as medical treatment is problematic, again for the reasons that Mr. Ryan stated. We are talking about food and water, to use simple terms. Once you characterize a necessity of life as medical treatment, it becomes a relatively straightforward matter to withhold that necessity on the basis that it is medical treatment. That is particularly the case where there has been an advance directive signed by the individual.

I am not sure that the act that was passed in Alberta was in direct response to the committee's recommendation. The Personal Directives Act is in many ways similar although not identical to legislation passed elsewhere in Canada. I do not propose to go through all the statutes in all the provinces. At least half if not more provinces in Canada have passed directive legislation. In Ontario, I believe it is called the Substitute Decisions Act. In any case, I have spent a few years studying this material and studying in particular advance directives and the legislation that supports them. The more I study it, the more my concerns grow. Before the committee, this point might not be relevant, but it seems to me that particularly where the committee appears to believe that advance directives and their use would somehow, if not solve the problem, at least contribute to a solution or become part of the solution, I have concerns.

From my perspective, the raison d'être of advance directives is the withdrawal of care, particularly in circumstances where the result will be the patient's death. One of the terms that has been used to describe some of the advance directive statutes in Canada and the U.S., and again I have not heard it before this committee today, is "death by choice" legislation. Most of you may have heard that term in reference to statutes that would legalize or decriminalize euthanasia or assisted suicide. I agree with that, but in my view it would also apply to the Personal Directives Act in Alberta.

I said that the reasoning behind the act was the withdrawal of care, particularly in circumstances where death will be the result. I also believe that professional liability, in other words, protection from lawsuits, is a concern, particularly on the part of health care associations. Some of the medical associations have made representations in support of this legislation. I do not think I am being too cynical about this. Very few physicians will come forward and endorse or support the legislation on those grounds, but it seems to me that that is a strong factor.

In Alberta, to digress again for a moment, section 28 of the Personal Directives Act protects health care providers. I think the term is service providers, which of course includes not only physicians but other health care professionals like nurses. In my view, and in the view of some of the people with whom I have talked, professional liability concerns are a major part of these sorts of statutes being supported in Canada and the U.S. Actually, the first person who mentioned that to me was a doctor who practises in Alberta today. He said that in the U.S., the motivation is liability protection for doctors. I asked him if it was any different in Canada, and his response was that we are a little more altruistic in Canada.

With respect to physicians in Canada, I am not challenging or attacking the motivation of many of the people who support these initiatives. I know that many doctors and nurses support this kind of legislation because they believe it is essentially a kind of patient welfare legislation, but I am not too cynical by saying that many of them are motivated by professional liability concerns.

Beyond that, I would have to say that another motive is what I referred to earlier when I mentioned the death-by-choice legislation. In some cases I believe there is a death wish by patients. In that respect, a report was published in 1993 by the Society for the Protection of Unborn Children in Great Britain. They described advance directives at length. One of the terms they mentioned was "advance refusal". In other words, an advance directive in Britain is often referred to as an advance refusal of treatment, which to me puts the lie to the suggestion that directives are nothing more than a way of making choices in health care. In my view, an advance directive is in many cases a way to eliminate health care.

Someone referred briefly to the creation of a two-tier medical system. At the rate that statutes are being passed in Canada and at the rate that the medical community is embracing the use of advance directives, I would suggest to you that the development of a two-tier medical system or health care system will be accelerated by the use of advance directives for the simple reason that there is no greater or more effective tool for managing health care costs than directives. Essentially, a directive is a document that says what a patient does not want -- in other words, what forms of health care they do not want at a certain situation in life.

In Alberta we hear it more than we do in other provinces, but in hospitals today, costs seem to be becoming the major factor in determining policy and in the way decisions are made. I would refer you to the Patient Self-Determination Act in the U.S., which provides that, if a hospital admits a patient without giving him the option to sign an advance directive, it can potentially lose federal funding. Given the size of some U.S. hospitals and the magnitude of the budgets we are talking about, that is a very large stick to hold over the head of hospital administrators. Again, from my perspective, it is related to costs.

I do not suggest that all who support the use of advance directives are motivated by cost or by budgetary concerns. I am saying that the very real potential exists that these things, which, in many cases, were the result of people being sincerely concerned about patient welfare, ultimately will become cost-control tools. They will become another management tool in the budget in the hospital administrator's repertoire.

Further to what was said earlier about the two-tiered health care system, I have thought about these things fairly sincerely. I do not speak as a hospital administrator or a doctor. This is a debate that should not be monopolized by health care professionals. In Alberta, however, some of the seminars and conferences I have attended have been strongly dominated by health care professionals, to the point that some of us standing outside that circle wonder whether or not our input is of any value.

I believe it is healthy to hear from people outside the health care system. As a lawyer, if I were to suggest that only lawyers should regulate lawyers, I would be ridiculed. We do have law societies in Alberta, but we are pretty closely supervised by the general public and by governments. Any suggestion that only lawyers should be the ones who, if you like, keep watch over lawyers would be laughed out of the room.

In this respect, it is healthy to have some input from outside the health care system, particularly in cases where, as with Alberta's Personal Directives Act, the liability protection that is being gained is being gained expressly for health care professionals. That is not to say that there are not other parts of this statute that protect other individuals; there are, and I will come to them, but I suggest that this was passed to protect the health care professionals who will be pulling the plug in many instances, albeit under the instructions of patients.

This act, and other personal directives or other advance directives acts that I have looked at are rife with conflicts of interests. As one simple example: a life insurance beneficiary who is also a health care agent appointed by the maker of a directive, is, under this act, guaranteed freedom from at least civil liability for pulling the plug. That is also the case for estate beneficiaries, for someone who is a beneficiary under a will. Any statute that says to a person, "You have the power and the authority to disconnect another individual from life support in a situation where the immediate result is going to be death, but you also will benefit from the will or from a life insurance policy," causes an inherent conflict of interest. That is what I call it. It is certainly not something I have read about in the newspapers in Alberta. Those are two conflicts that are in here, but, in my view, it is rife with them.

If I can comment further about advance directives, one of the issues in health care today is informed consent. We are hearing about that a fair amount, mostly in the context of present health care decisions. In other words, if I am going in for surgery, I am informed of the potential risks, the potential benefits, and given the opportunity to make a decision. With a personal directive or an advance directive, a patient is asked to sign a form that gives, years or decades in advance, his health care agent, and the medical staff who act under that person's instructions, the instructions and consent to deliver medical treatment.

In any other situation, we would ask whether the consent that is being given is based on current information. In other words, if I am given an option for surgery for myself, how current is my information?

An advance directive essentially is a kind of blanket consent. It is a blank cheque for medical treatment and it is a blank cheque that will cover, in some cases, many, many years to come. A person who has given that consent might be informed, if it is a matter of an imminent illness, but in many cases the treatment that this person will receive will be years or decades after he has signed that form. Nevertheless, he has given the consent in the form.

My point is this: An advance directive is not real, current, consent. It is essentially a form of anticipated consent and it is really, as I said before, a form of blanket consent that is given many years in advance, in many cases well before the patient will have contracted any illness or condition.

Again, that is simply one of many different reservations I have about the documents. If I had to identify one reservation as the most important, it would be that advance directive statutes are built around choosing death, around facilitating death.

Peter Ryan talked about whether or not an omission can constitute compassionate homicide. I would suggest that in many cases that is what these documents will be for. In the British report I mentioned, published in 1993, the term used was "suicidal ideation," and it questions what there is to stop someone who is suicidal from simply making out one of these documents and letting nature take its course. In many cases, there will be suicidal intent here.

My concern is that in Canada there seems to be a waning respect for the value of human life. I appreciate that some people believe that personal autonomy and choice trump all other factors; that personal autonomy is either the only thing or the most important thing that matters. However, there are other factors involved here than personal autonomy and choice. In cases where people are making decisions that may lead to their own death, surely there must be some scope there to balance the equation with respect for human life.

If I were persuaded that personal autonomy or choice were not the prevalent factors here already, having read the report, I am not sure I would mention this, but my reading of the report suggests to me that there is respect for human life, but that there are other factors that are being brought into the equation. Personal autonomy and choice are not the most important factors here and they should not be allowed to dictate the debate.

The Chairman: Thank you. Before we go to questions, Senator Corbin has asked to be allowed to raise a point of order.

Senator Corbin: Yes. The recommendation in the report of June 6, 1995, is represented as a unanimous recommendation. However, I rose in the Senate on Wednesday, June 28, 1995, and I said:

[Translation]

... today, I want to dissociate myself from the opinion or unanimous recommendation to the effect that the Minister of Justice -- and that was one of our recommendations, I acknowledge it -- should consider instituting a definition of murder in the third degree, murder by compassion, in order to decrease the penalty.

I find that if there is "compassion" when murder is committed, a jury and a judge will know what to make of it. But going as far as saying we should set up a third category for murder to my mind is perhaps inviting certain individuals to make use of what, basically speaking, becomes a subsequent defence, in other words a motive to commit murder. I think this leads to a decrease in the respect that is owed to life.

I apologize to my colleagues, to the Chair and the Vice-Chair and other members of the committee; I should have stated this when we were examining the text. I was not here last week. I intended to come back to it. I was absent, so I missed the opportunity. First and foremost, I want to live at peace with my own conscience. That is why I am stating this today.

The majority recommendations in the report are also my recommendations in all respects, except for the matter I have just raised.

[English]

I have to live with the consequences, but I did make that statement in the Senate. I do not mind if there is continued reference to that recommendation as being the unanimous view of the committee. It was when the report was tabled. However, because of my absence, I did not contribute to the debate and the editing of that particular recommendation. I would not have supported it had I been present in committee. That is all I want to say.

The Chairman: Thank you, Senator Corbin. I was certainly in the chamber when you made that very passionate statement.

Senator Beaudoin: Do you agree generally with our lexicon? I listened carefully today to all your proposals. It is obvious that you are against the suggestion of third-degree murder. I took note of that, because in my opinion it is very important.

[Translation]

Dr. Ayoub, do you agree with our lexicon and, if not, why not? I have always said that if we define the terms at the outset of a discussion, then we gain hours, days and months in the discussion. We often realize, after all our discussions, that we were not using the same definitions.

You spoke brilliantly about palliative care. The members of the committee are certainly all on the same wavelength on this matter. If there is a point we all agree on, it has to be that one. You recommend the development of palliative care, but do you have any suggestions for us on that? In large part, this care falls under provincial jurisdiction. We'll be discussing it in our June report, but it might be good to have your views on that to be able to convey them to the provincial authorities.

Mr. Ayoub: What is important to note is that there is still no continuum in palliative care. There are good units in place, but there is no relationship between these units, local community service centres and home care. The lack of financial resources is to blame for that and it means that we cannot provide relief to the patients' families. If the resources were better, we could establish this continuity between the different end-of-life services.

Senator Beaudoin: In the field of palliative care, I don't believe we need more legislation; we simply need to better develop the services. Provinces should assume their responsibilities. We may want to suggest legislation, but it is not a federal jurisdiction.

You say we must ensure continuity and it is true. But we must also ensure co-operation between the federal government and the provinces. You're in a perfect position to tell us about the resources since you work in a hospital every day. Are the resources a problem?

[English]

The Chairman: Mr. Mahony, with regard to the issue of advance directives, I have to tell you that we had an entirely different pattern in the province of Manitoba. It was not the doctors who requested advance directive legislation. It was the Manitoba Society for Seniors. It was the legal fraternity. Quite frankly, doctors were not engaged in this issue at all. They became engaged after the fact and their position generally was one that supported the advance directive legislation because they thought that it led to clarity for what they could and could not do. I would welcome your comment on that.

Mr. Mahony: Concerning the issue of clarity, that has been suggested to me a number of times. What some people have said is that in end-of-life situations, in particular hospital situations where the family is involved, there is often conflict between different members of the family. There may be warring factions within a family, with one camp in support of the patient being disconnected and the other in support of the person being kept on life support. It has been suggested that advance directive legislation would clarify that, allowing one person to make the decision.

My belief is that passing a law is not always a solution to a problem, in particular when you are talking about family relationships where there are, if you like, latent conflicts, as well as open conflicts, some of which have been developing for years. When someone walks into the room and says, "I have dad's directive. I am in control here," I suggest that that will create as much litigation and as much conflict as existed before, if not more. What will now happen is that the parties will hire lawyers.

Being a lawyer and having practised law, I know what families can be like, and I know that the scope for conflict is almost infinite. I certainly agree that under the previous situation it was not good. When you have two or three people on each side of a hospital bed giving conflicting instructions to a doctor, there is no question that that is a messy situation. As a lay person once put it to me, dying is a messy business. I do not believe that a personal directive or advance directive, or whatever term is adopted by the province enacting the legislation, will improve or resolve that situation, but it may provide clarity as far as liability is concerned. We are coming back, perhaps, to the root of the matter. With respect to defining liability, it may provide some clarity. As for resolving conflicts and improving the situation that exists in some of those hospital rooms when a family member is dying, I do not think it will improve things one bit.

The Chairman: You seem to imply that, once a person signs an advance directive, it is there in perpetuity. I have changed my will at least six times throughout my life; because I had responsibilities for children at different stages of their lives, I therefore changed the will to accommodate that. I have also changed my advance directive three times since I signed my first advance directive in the Province of Manitoba. It is important to clarify that an advance directive is not a stagnant document; in fact, like a will, it can be a living document.

Mr. Mahony: Senator, you are very conscientious. I am not being facetious or sarcastic when I say that. Most people are not. As a lawyer, I was contacted about two years ago by someone who had been a client of my father and had made his will in 1958. For 30 years, he did not make a single change to the will. My point is that, as in everything else, a few people will be conscientious and update their directives and wills, but many people will not. The difference is that, if I forget to update an ordinary will, it will only affect the disposition of property or money, as a general rule. When a person does not update a directive, however, it may well determine the end of his or her life.

The stakes are much higher with a personal directive. It is a matter of life and death. An ordinary will and a power of attorney deals with property, but an advance directive deals with human life, far too important an issue to relegate to a single document.

A directive tries to encapsulate in a few lines a person's wishes about life and death, something that is ever-changing. We all have moments in our lives when we get depressed and lose hope, but we also have moments when we are prepared to go on. In many cases, people who sign advance directives will lose the opportunity to choose life.

Section 11 of the Alberta Personal Directives Act, which I know is one of several, provides that only a person who understands the nature and effect of revoking a directive may do so. There is essentially a capacity test which is a prerequisite to revocation. In other words, if you do not have the mental capacity to revoke that directive, you cannot do so. That is an another way of saying that at a certain point the directive becomes permanent.

Coming back to what is at stake here, with directives it is generally a life and death issue, not a property issue. If Dad, Mom, and Uncle Sam forget to include me in their wills, no one will die as a result. I will be sorry that I did not get the house, but it is not a matter of life and death. Advance directives are often a case of life and death, and many directives will become a death sentence for people who would have revoked them, had they been as conscientious as you.

The Chairman: I have some questions about artificial hydration and nutrition, particularly with respect to the forcible treatment of patients with nutrition and hydration. We are all aware that, in order to be provided artificial hydration and nutrition, the patient must be connected to either an intravenous tube or a shunt. We cannot force-feed an individual by mouth. That is considered assault in the Criminal Code of Canada. Why is it any less an assault if we force-feed a person via tubes?

Mr. Schadenberg: In my report I referred to artificial nutrition and hydration with regard to the issue of want and need. The primary concern is for the incompetent. However, there is a difference if we refer to nutrition and hydration as medical treatment. That provides for the depressed and those who might be having a hard time with a health condition that may or may not be permanent but at this point in their lives has made them question whether they should continue to live.

The problem is that, if we call artificial nutrition and hydration medical treatment, it can be refused or withdrawn. When someone is competent to decide that they do not want any more food or fluids, because of their competency they may decide tomorrow to continue living because of a change in their life circumstances. Their competency allows them to continue.

In the case of the incompetent, there is a whole other dimension. For those who are in a persistent vegetative state, who may have severe disabilities, if this is called a medical treatment, especially for people who made an advance directive previous to their incompetency saying that they wanted no medical treatment in this situation, that would result in the end of artificial nutrition and hydration and in starvation and dehydration.

Oxygen is a different situation. If I deny you oxygen and you die, you die of the disease from which you were suffering. Oxygen is always available with no intervention. We always need food and fluids as well, but they must be taken or administered in some way, be it through a spoon, a tube, or whatever.

Therefore, it would very much put in jeopardy the lives of the incompetent to define artificial nutrition and hydration as medical treatment rather than as normal care. As I said in my presentation, care is based on need. Therefore, we do not force-feed someone who is dying. The issue here is not that of allowing someone whose body is shutting down to die naturally. The issue here involves people who are not otherwise dying, but who are incompetent, and whose family members decide to let them die more quickly and use this method to do so.

Mr. Cameron: The comparison with force-feeding may not be an exact analogy, because force-feeding implies a lack of consent, deliberately doing something against someone's will. Most of the situations in which artificial nutrition and hydration comes into question are situations in which the person is not conscious. There are cases where the body is shutting down and is no longer metabolizing. In those situations, nutrition and hydration can become burdensome.

I think the same test must apply to artificial nutrition and hydration as is applied to all other treatments, and that is whether the benefit is greater than the burden.

Artificial nutrition and hydration could become burdensome in certain circumstances, but under most circumstances it is an ordinary necessity of life. It is not an extraordinary treatment unless you are in the end stage condition, where the body is rejecting the nutrition and hydration. Under most circumstances, I do not think it can be considered to be an extraordinary treatment, because all people have an inherent need for nutrition and hydration. It would not be considered force-feeding unless you were doing something against someone's will. I think most people would want to be fed, if they were going to be temporarily unconscious. There is a presumption that nutrition and hydration should continue to be administered unless it becomes positively contrary to clearly expressed will.

The Chairman: I think I understand what you are saying, but surely we need to clarify that it is a medical treatment. Sticking an IV in someone's arm or putting a shunt into their shoulder surely makes it a medical treatment. You are invading that person's body.

Mr. Cameron: The insertion of the shunt might be a medical treatment, but providing nutrition and hydration --

The Chairman: But you cannot provide it if you have not provided the shunt.

Mr. Cameron: The means may be a medical means but the end is something that is necessary in any condition of life. Merely because you use a medical technique to achieve that end does not make the end medical. The end is something that every living human being would be presumed to want. It is only the means that is medical, not the purpose for which it is provided.

The Chairman: My own experience with two dying parents was that, as they were dying, they did not want to eat or drink. It did not occur to me to feed them or give them drink artificially, when it was clear that they could take it naturally and chose not to.

Mr. Cameron: We are dealing with consent. You are potentially in a different situation. I am not talking about refusing treatment. I am talking about withdrawing treatment where there is no indication of consent.

The Chairman: There being no other questions, I wish to thank you all very much for your presentations this afternoon. They were very much appreciated.

The committee adjourned.