Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 8 - Evidence - May 4, 2016
OTTAWA, Wednesday, May 4, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this
day at 2:02 p.m. to examine the subject matter of Bill C-14, An Act to amend the
Criminal Code and make related amendments to other Acts (medical assistance in
Senator Bob Runciman (Chair) in the chair.
The Chair: Good afternoon and welcome, colleagues, invited guests,
members of the general public who are following today's proceedings of the
Standing Senate Committee on Legal and Constitutional Affairs. Today we begin
our hearings for our pre-study of Bill C-14, An Act to amend the Criminal Code
and to make related amendments to other Acts (medical assistance in dying).
To start things off we have the Minister of Justice and Attorney General of
Canada, the Honourable Jody Wilson-Raybould. Joining her at the table from the
Department of Justice are William Pentney, Deputy Minister of Justice and Deputy
Attorney General of Canada; Donald Piragoff, Senior Assistant Deputy Minister,
Policy Sector; Laurie Wright, Assistant Deputy Minister, Public Law and
Legislative Services Sector; Joanne Klineberg, Senior Counsel, Criminal Law
Policy Section; and Jeanette Ettel, Senior Counsel, Human Rights Law Section,
Public Law and Legislative Service Sector.
The minister has agreed to be with us today, and we've done a rejigging of
the schedule. Once the minister's 90 minutes are complete and she departs, the
Minister of Health will then take over and make her presentation. We're going to
ask officials from both Justice and Health to remain once the ministers have
departed so that committee members may have an opportunity to get into greater
Minister, welcome. We appreciate you being here, and the floor is yours.
Hon. Jody Wilson-Raybould, P.C., M.P., Minister of Justice and Attorney
General of Canada: Thank you for that introduction. I certainly want to
acknowledge you, Mr. Chair, and all honourable senators around the table. It is
my pleasure to be here, and I look forward to engaging in discussion.
I wanted to provide some opening remarks and again thank you for providing me
the opportunity to speak to Bill C-14, which as we know responds to the Supreme
Court of Canada's unanimous decision in Carter v. Canada last year. The
bill introduces a federal framework around medical assistance in dying.
Medical assistance in dying is a complex and deeply personal issue. In
crafting this new law, the Supreme Court of Canada recognized in Carter
that Parliament is called upon to consider and carefully weigh many diverse and
important interests, including respecting personal autonomy, protection of the
vulnerable, and ensuring that the decriminalization of medical assistance in
dying does not interfere with suicide prevention, respect for Canadians with
disabilities and promoting well-being more generally.
Bill C-14 would establish criminal law rules regarding medical assistance in
dying that address eligibility, procedural safeguards, and the framework for a
monitoring system. The proposed legislation would reenact sections 14 and 241(b)
of the Criminal Code so that it would continue to be a crime to assist another
person to die or to cause another person's death with their consent, except if
either of these actions were done in accordance with the rules for medical
assistance in dying as set out in this bill.
Bill C-14 would exempt physicians and authorized nurse practitioners from
criminal liability if they provide medical assistance in dying to an eligible
person in accordance with the procedural safeguards in the legislation. It would
also exempt others who might be involved in this process, such as pharmacists
who fill out the prescription for medication. Importantly, the bill also
includes a parliamentary review five years after coming into force.
The government chose this approach after thoroughly considering the full
range of potential options for medical assistance in dying in terms of the
regime. As noted in our legislative background paper, which I tabled at second
reading, this included analyzing and comparing regimes from other jurisdictions,
including Quebec's legislation, certain American states, several European
countries, and the country of Colombia, among others.
The government also relied on the consultations conducted in this country,
including the work of the special joint committee, the external panel, the
Provincial-Territorial Expert Advisory Group, and Quebec's multi-year study that
informed the development of its own legislation in that province. We also
engaged and consulted with a wide array of stakeholders.
With the benefit of all this evidence and knowledge, which exceeds even the
detailed record that was before the court in the Carter case, the
government has thoughtfully addressed this issue.
Bill C-14 would allow for greater flexibility than the laws that exist in the
United States that are limited to terminally ill patients. At the same time, it
does not go as far as some of the more permissive regimes in European countries.
As the court noted in Carter, complex regulatory regimes such as this are
better created by Parliament than by the courts. It is a fair, practical and
In terms of eligibility, I am aware that Bill C-14 would take a different
approach than that suggested by the majority report of the special joint
committee. Some have raised questions about whether Bill C-14 would comply with
Carter decision and the Charter of Rights and Freedoms, and I would like
to address those concerns.
The bill was deliberately drafted to respond to the factual circumstances
that were the focus of the Carter case, where the court only heard
evidence about people with late-stage incurable illnesses who were in physical
decline and whose natural deaths were approaching. The Supreme Court said that a
complete prohibition on medical assistance in dying in the Criminal Code was a
violation of Charter rights for persons in those circumstances.
Accordingly, our government has decided that issues that were beyond the
circumstances and evidence considered by the court in Carter, including
eligibility of people under 18, advance requests, and mental illness as a sole
basis for the request should be studied further and are not included in Bill
C-14. This further study is warranted as these complex issues raise distinct
legal, ethical and practical dimensions that the Supreme Court of Canada did not
In terms of so-called mature minors, we are mindful of the evidence heard at
the special joint committee that more study is needed. Given the irrevocable
nature of the procedure and the fact that minors can be particularly vulnerable
by virtue of their age, especially when they are seriously ill, a cautious
approach is warranted at this time.
In terms of advance requests, when a person would be unable to confirm their
wishes at the time that the medical assistance in dying would be provided, the
risks of error and abuse increase. The Supreme Court of Canada recognized in its
2011 J.A. decision that a person cannot consent in advance to sexual
activity that would take place when they are unconscious. The court noted that
the person would not be able to withdraw consent if they subsequently had
changed their mind. The same concerns, I would submit, arise with respect to
advance requests for medical assistance in dying where the person cannot
expressly confirm or withdraw their consent.
In practical terms, in the very few jurisdictions where advance requests for
medical assistance in dying are allowed, few physicians are willing to perform
medical assistance in dying under those ethically difficult circumstances.
Further study of this complex issue, which was not addressed in the court
decision in Carter, is warranted.
With respect to mental illness as the sole basis for the request, this issue
is especially complex. First, I want to emphasize that the bill does not
discriminate against people with mental illness. They would have the right to
apply for medical assistance in dying on the same terms as all other Canadians
and would able to access it if they met all of the eligibility criteria.
However, our government is mindful that allowing assisted dying for persons
solely on the basis of a diagnosis of mental illness could harm efforts to
promote well-being and discourage suicide more generally.
If mental illness is permitted as the sole basis for medical assistance in
dying being provided, and if eligibility was not restricted to persons whose
deaths have become reasonably foreseeable, it would be difficult to limit
eligibility at all, on any principled basis. For example, it would be arbitrary
to permit access to medical assistance in dying for people with mental illness
alone but to then exclude persons with severe, but non life-threatening,
physical disabilities or persons who live with other forms of suffering.
Highly permissive assisted dying regimes tend to privilege personal autonomy
above all other rights and interests, which is not consistent with the Charter
nor good public policy. Parliament's task, as noted by the Supreme Court of
Canada, is to:
. . . weigh and balance the perspective of those who might be at risk in a
permissive regime against that of those who seek assistance in dying.
In order to meet this challenge, we must carefully consider all of the
relevant interests at stake, not simply autonomy on its own. By focusing on the
factual circumstances in Carter, Bill C-14 respects all of these rights
and interests. The Supreme Court of Canada noted in Carter that a complex
regulatory regime designed by Parliament would receive a high degree of
deference from the courts. I am confident that the fair and balanced approach in
this bill will withstand Charter scrutiny.
Because the purpose of the legislation requires that a person's death be
reasonably foreseeable, it provides health care practitioners with flexibility
to take into account all of the person's medical circumstances. By defining the
term "grievous and irremediable medical condition,'' the bill ensures that all
competent adults who are in decline while on a path towards their natural death
would be able to attain medical assistance in dying whether or not they suffer
from a fatal or terminal condition.
The legislation also contains the phrase "without a prognosis necessarily
having been made as to the specific length of time that they have remaining,''
which signals that eligibility does not depend on a person having a certain
number of weeks or months left to live, as in certain American jurisdictions,
but only that their death be reasonably foreseeable.
Finally, I want to emphasize the importance of having a legislative response
in place by June 6, 2016, when the court's declaration of invalidity expires.
Without a new law in place on June 6, the parameters of the Carter
decision would apply, but the scope of the decision is uncertain in several
respects and, as a result, there would be uncertainty as to how it would be
applied in practice. Assuming for a moment that the Carter decision was
read down, sections 14 and 241(b) of the Criminal Code — so that, except for
medical assistance in dying, these criminal laws would be in force — significant
uncertainty would still remain.
First, in the medical community, there is no common understanding of what a
grievous and irremediable medical condition is. As such, it would be difficult
for a patient who would be eligible under Bill C-14 to access medical assistance
in dying. Without a clear federal law in place, physicians who may otherwise be
willing to provide medical assist assistance in dying could refuse to do so
because of the uncertainty.
As well, failing to define the Carter parameters in federal
legislation could lead to a wide variation of how eligibility is applied, not
only between provinces or regimes but within them. Access in rural and remote
areas would be negatively affected, not only because physicians may be unwilling
to provide medical assistance in dying in such an uncertain legal environment,
but also because under the Carter decision nurse practitioners are
allowed to provide assistance.
Second, the current interim court approval process will end as of June 6.
Outside of the province of Quebec, there would, therefore, be no legally binding
framework to govern medical assistance in dying. In other words, there would be
no mandatory procedural safeguards to prevent abuses and to protect vulnerable
Guidelines published by medical regulators are not binding nor are they
uniform, which further risks creating a patchwork across Canada. This could pose
serious public safety risks. For instance, a patient could both request and
receive medical assistance in dying on the same day. Without going through an
exhaustive list of risks, needless to say it would be irresponsible to let June
6 come and go without a federal law in place.
As the court made clear in Carter, the risks associated with
physician-assisted death can be limited through a carefully designed and
monitored system of safeguards. Bill C-14 provides a responsible and balanced
framework that limits those risks and puts in place those safeguards.
I would welcome the opportunity to discuss the bill and, certainly, to
contribute to your study of this legislation. The approach that we took in Bill
C-14 responds to the Carter decision with sensitivity on all of the
issues that were before the court in that case, and creates a responsible and
fair legal framework to permit medical assistance in dying across Canada for the
first time in our country's history. This is, has been and will continue to be a
Thank you for allowing me to make some opening remarks. I look forward to
The Chair: Thank you, minister. We will begin questions with the
committee's deputy chair, Senator Jaffer.
Senator Jaffer: Minister, thank you for your presence here today. You
certainly are not new to Senate hearings. You have often appeared at the Human
Rights Committee hearings, but now you are here in a different role, so we
Minister, I want first a clarification of the remarks you made. You said that
you looked at the Carter decision, but although it says Carter, it
really applies to circumstances of Gloria Taylor. Are you saying that you looked
at the specific circumstances of the health of Gloria Taylor and that that was
the basis of your decision, not the Carter
Ms. Wilson-Raybould: Thank you for the question, senator. It's indeed
a pleasure to be back before you.
We read carefully the decision in Carter. As I said in my remarks, we
put forward Bill C-14 to respond to the specific circumstances as articulated in
Throughout the decision, in many different places, the court referred to
Gloria Taylor and people like her. Our legislation responds to individuals who
are approaching the end of their lives and suffering from a grievous and
irremediable medical condition, where death is reasonably foreseeable. I am
confident that our legislation responds to Gloria Taylor and also responds to
Kay Carter's circumstances.
Senator McIntyre: Thank you, minister, for your presentation and for
As you know, the Supreme Court, in both the Rodriguez and Carter
decisions, were very much concerned with the issue of procedural safeguards on
medical aid in dying. So were Parliament's joint committee and the Provincial-
Territorial Expert Advisory Group. The bill addresses those concerns. As a
matter of fact, I note that there are a number of procedural requirements that
Bill C-14 introduces to safeguard the medical aid in dying process.
Minister, my question has to do with federal safeguards as opposed to
provincial and territorial safeguards. That said, if you are satisfied that a
province or territory enacts safeguards that are substantially equivalent to the
federal safeguards, would the federal law apply in that province or territory?
Likewise, if you're not satisfied, how would the federal law apply in those
Ms. Wilson-Raybould: Thank you for the question, senator.
Bill C-14 is an exercise of the criminal law power. In advance of introducing
this proposed legislation, I had the opportunity, as did my colleague the
Minister of Health, to speak with our counterparts in the provinces and
territories. I had the opportunity to speak to all of the Attorneys General on
The consensus was that the provinces and territories were looking for federal
leadership with respect to medical assistance in dying. We reviewed all of the
reports that you referenced, sir, and reviewed in great detail the
recommendations of the special joint committee in terms of safeguards.
Within Bill C-14, we have put in place those safeguards — requiring two
medical practitioners, requiring two independent witnesses — and the additional
safeguards that are articulated in this piece of legislation, all of which will
apply in each jurisdiction across the country in terms of what needs to be
addressed by medical practitioners in order to, one, determine eligibility and,
two, to provide the necessary safeguards to ensure that we are doing as much as
we can to protect the vulnerable.
The provinces and territories, having to comply with the criminal law, will
have the ability to institute and work with their medical regulators and others
to provide the space that they deem appropriate within their own jurisdictions.
Senator Cowan: Welcome, minister. You were kind enough after the bill
had been introduced to ask me to come to see you. I expressed at that time my
concern that the bill was too narrow and that it didn't meet the threshold of
and the requirements of the Charter of Rights and Freedoms.
You said, in your opening statement, that the bill was deliberately drafted
to respond to the factual situation in
Carter. Then, in response to a question from Senator Jaffer, you said it
referred to the specific circumstances of Carter and Taylor. With respect,
minister, it seems to me that it is entirely the role of the court to respond to
the specific circumstances before the court. That's what a judge does, but the
role of Parliament, it seems to me, is different. I refer you to the resolution
that was passed in December 2015 to set up the joint committee that you referred
to. It talks about consulting with Canadians and experts and making
recommendations on the framework of a federal response on physician-assisted
dying that respects the constitution, the Charter of Rights and Freedoms and the
priorities of Canadians.
It seems to me that our task, as legislators, and your task, as minister, is
to produce a broader response and not one that simply responds to the specific
circumstances or the factual situation before the court. Perhaps you could
comment on that.
Ms. Wilson-Raybould: Thank you, senator, for the question, and it's an
I'll preface my comments by saying that this is an incredibly difficult, very
emotional and sensitive issue. I certainly recognize all of the reports and
acknowledge the work of the special joint committee that presented their
recommendations and, beyond that, presented to our country the ability and the
mechanisms to actually engage in a national conversation about death.
I'll repeat what I had indicated. This is a transformational shift. This is a
paradigm shift in terms of the discussion that we're having. Maybe it's
appropriate, at this point, to acknowledge the lives of Gloria Taylor and Kay
Carter and, before those two individuals, Sue Rodriguez who I believe have
brought us to this place where we, in this country, are having this
To your question, in terms of thinking about the Supreme Court of Canada's
decision in Carter, the court was clear on two things: one, that complete
and outright prohibition on medical assistance in dying is unconstitutional,
violating section 7 of the Charter. The second thing they said, as you quite
rightly point out, is that it is up to Parliament to put in place an appropriate
complex regulatory regime. We have benefited from an incredible amount of
diverse input that we've received, right across the country, from experts, from
individual citizens, that have contributed toward this discussion. The input has
been very diverse. This is the balance that we, as government, looked at in
terms of drawing up and putting forward proposed legislation that would find the
balance between personal autonomy and respecting the decision in Carter.
Senator Cowan: With respect, minister, what we're talking about is the
threshold — I call it the threshold — in
Carter, and we're also talking about the Charter of Rights and Freedoms.
Do you have an opinion that you can release to us that will confirm that this
bill meets not only the threshold of Carter but also would preclude, so
far as is reasonable, challenges under the Charter of Rights and Freedoms?
Surely none of us want to put another Carter or Taylor through this agony,
ordeal. The courts were obviously bound by the facts of the cases in front of
them, but we're not bound by that. Surely it's up to us, as legislators, to
anticipate future Carter and future Taylor challenges and to meet
those and to put the kind of robust regime in place, without being restricted to
the factual situation in Carter and Taylor. Wouldn't you agree?
Ms. Wilson-Raybould: I think we, as parliamentarians, have an
incredible task, and, now, the government has put forward our proposed response
that we will substantively debate these issues.
To your question in terms of the background or the thinking behind Bill C-14,
I was very pleased, as minister, to be able to table, at second reading, an
explanatory paper that gets at, senator, those questions that you're asking in
terms of the considerations that we, as a government, went through in terms of
looking at Carter, in terms of balancing the diversity of interests out
there, from personal autonomy to ensuring that we create the space and
protection of the vulnerable, which is what the decision spoke about.
Also included within that explanatory paper, we spoke about Charter
considerations. I would encourage all Canadians to read that, to understand the
thinking that went into the decision.
Senator Cowan: That's not an opinion. That's a background paper.
Senator White: Thanks to the minister for being here this afternoon.
I wonder if the minister could map out what a five-year review is going to
look like. Are we talking about a complete review of the legislation and
possible redrafting? I've seen some five-year reviews in the past, and I wasn't
always pleased with where we ended up. Do we actually have a prescribed formula
of what a five-year review would look like?
Ms. Wilson-Raybould: That's a good question. Thank you, senator.
We have no predetermined formula for how that five-year review will be
undertaken. By putting that in there, we have recognized that this conversation
we're having is not going to stop with the passage of Bill C-14. A number of
areas, as you're aware, require more study. We've committed in the preambular
language to have more study on those issues. We recognize that we want to be
responsive to the law that will be put in place and that we ensure that we
acquire and monitor the system or the law as it unfolds to be able to be
responsive to the evidence we gather and to the dialogue that will continue in
the country in terms of how our regime is working or how it can be improved.
Senator White: Thank you for the response.
My second question is around the term "nurse practitioner.'' I worked in the
North for many years where we had a lot of nurse practitioners. I was on a
couple of provincial websites trying to see what authorities they have. Their
authorities seem to be derived, when it comes to things found in this bill,
around a requirement to have a physician approve or provide some level of
approval for their actions. This bill certainly seems to give them more power
than what I could find on the Ontario website in terms of nurse practitioners.
Is there a reason we have nurse practitioners included in this bill? Is there
a necessity for them in the bill?
Ms. Wilson-Raybould: In terms of nurse practitioners, Minister
Philpott and I considered the safeguards required within the bill and the
recommendations of the special joint committee. We recognized the need to ensure
access to medical assistance in dying across the country and that, as you
pointed out, in more remote areas communities sometimes don't have the benefit
of a doctor let alone two doctors in place. There are substantial nurse
practitioners trained in the jurisdictions where they practice that have a
direct relationship those communities, live within the communities a lot of the
time, and would be able to provide medical assistance in dying to address the
access issues. We also recognize in terms of the various jurisdictions that they
would be able to determine how nurse practitioners are trained or what
involvement nurse practitioners could have.
Senator Joyal: Thank you for the opportunity to convey to you
personally my preoccupations.
I was very much disturbed by the statement made by the Quebec Minister of
Health, Gaétan Barrette, who appeared on French CBC Sunday morning and made
comments that challenge the constitutionality of the government bill, to put it
in neutral terms. The reason is that the Carter decision opened the door
to physician-assisted dying but with no reference to foreseeable death.
By introducing in the bill the criteria of foreseeable death, you limit
Carter extensively by opening the door of physician-assisted death only to
people whose foreseeable death is predictable on the basis of a doctor's
prognosis. That was never included in Carter. On that basis, you open the
door to a challenge because section 7 clearly recognizes for all Canadians the
accessibility to physician-assisted dying of the person in a terminally ill
condition or the person in a condition of intolerable suffering.
My contention, when I read the bill, is that since you limit the right
recognized in section 7, the bill would be open to the Oakes test by the
Supreme Court or by any Canadian court to see if your limit is reasonable in a
free and democratic society — section 1 of the Charter. By alleging section 1,
as you know, you are open to the three fundamental questions of the Oakes
test. I'm sorry if I'm using an arcane word around the table, but you are a
lawyer and will certainly understand, and your advisers would certainly know
what I'm talking about.
When the court looks into your bill, they will ask three questions. The first
question is: What's the purpose of the bill? They will look into the "Whereas''
section of the bill and into your public statements made here or in the other
house or other comments you may have made. When I read the "Whereas'' section of
the bill, I see that the sixth one deals with an objective of the bill that
contradicts Carter. Carter recognized physician-assisted suicide,
and you want to exclude that in your bill.
Your bill is in clear contradiction of the interpretation of the Supreme
Court. When the court asks the second and the third question, your bill will not
survive the test. In my opinion, that's the main —
The Chair: Senator, we're not going to have time for an adequate
Ms. Wilson-Raybould: I certainly appreciate the conversation we're
able to have on this.
I'm confident that this bill not only responds to Carter but will
withstand constitutional challenges. The purpose or the object of this bill is
to ensure that we provide medical assistance in dying in this country that
ensures that we respect personal autonomy while also ensuring the protection of
This was what the court asked us as parliamentarians to do. We considered the
diversity of perspectives. In terms of the public policy discussions and
decisions that were made, we are providing in this piece of legislation the
ability for persons who meet the eligibility criteria to have a peaceful passage
While I recognize there are Charter considerations, I would submit to you,
senator, that it would meet the Oakes
test, given the discussions we've had and the diversity of voices we've heard.
Senator Plett: I want to continue what Senator White started regarding
nurse practitioners. I am going to be a little more explicit than he was. Nurse
practitioners, in fact, are unable to prescribe narcotics in parts of the
country. There are limitations on which diagnostic tests they can do. They are
not allowed to do CT scans or MRIs. There are limitations to where they can even
order an ultrasound or an x-ray. Yet you are saying that because of logistics
and because they might be in the North, we will give them that.
I have two questions. First, will you allow them, then, to prescribe drugs in
the North and do X-rays that they cannot do now but they can assist somebody in
My second question is on the independent medical opinion that is needed.
Again, I've spent a good part of my life in some of these small communities that
you are referring to. In many of these communities, nurses, or even doctors if
they have doctors, live together in one house, maybe even one apartment, because
of what they have there. Now, if two nurses live together, how much of an
independent opinion is it when one nurse says to the other one, "I believe this
person is eligible to die''?
Ms. Wilson-Raybould: I appreciate the comments and questions and
recognize my previous answer with respect to nurse practitioners. Nurse
practitioners are defined in the legislation. They certainly are under the laws
of the provinces and territories in which they practice, so the extent of their
practice will be determined by those jurisdictions.
To your question about remote communities and two nurse practitioners living
in the same house, we have put in place safeguards in the legislation that
insists that there is independence with respect to those two opinions. That is a
situation that would have to be looked at in individual circumstances.
Senator Plett: Let's just hope it works out.
William Pentney, Deputy Minister of Justice and Deputy Attorney General of
Canada, Department of Justice Canada:
Senator, if I may, I have two points to underline further what the minister
One, this is creating an exemption under the criminal law. Where a nurse
practitioner is involved, it would only be because the province has authorized
them as defined in the statute to have that scope. That is entirely a decision
for the provinces to make. But the nature and scope, as you indicated, there are
differences in terms of what are currently authorized for nurse practitioners.
Second, like physicians, they are a regulated profession. We would expect the
regulatory bodies to be involved in this, the provinces and territories, as they
are now in regulating the scope and nature of the practice of nurse
practitioners and doctors. It will be their administration and regulation that
will ensure that the rules are followed.
If a nurse practitioner acts outside of this, they're committing an offence
under the Criminal Code. There's a limited exemption created where the rules and
processes are followed. If a nurse practitioner is not authorized by the
province to do this but does it anyway, they've committed an offence under the
Criminal Code that is specifically set out in the provisions of the code. In
that sense, it's not as though it is intended to open up a free-for-all. It's
within a regulated profession.
Senator Batters: Thanks for being here, minister. Welcome to our
I would like to speak about the preamble wording. In your opening statement
it sounded like you have a significant concern in making sure that people who
have mental illness are properly protected. That has always been one of my
primary concerns about this particular matter.
When I look at the way the bill is drafted regarding the provisions about
eligibility for medical assistance in dying, as you refer to it, and "grievous
and irremediable medical condition,'' the first paragraph of the preamble refers
to just grievous and irremediable medical condition. When you go to the
definition that's provided of grievous and irremediable medical condition,
that's where it brings in the issue of physical or psychological suffering.
You have to go to the preamble in order to obtain your government's assertion
that psychological suffering as a sole basis is excluded from this bill. But
having it in a preamble is a poor way to draft a piece of legislation because it
doesn't have the necessary force of law.
So you have that significant concern about these issues. When you testified
before the House of Commons committee earlier this week, you indicated your
clear indication that this would be something to conform with Carter
and to have as its intended purpose of medical assistance in dying to give
competent adults who are on a path toward their natural death the choice of a
If that is your real intention here, why would you have that in the preamble
and why would you be studying the issues of mature minors and mental illness,
which clearly Canadians do not want? They have indicated that loud and clear.
It's just not a good way to draft a piece of legislation.
Ms. Wilson-Raybould: Thank you for the question, senator.
In terms of the eligibility criteria that are laid out in this piece of
legislation, we sought to further define what "grievous and irremediable''
means. Those are the four elements that you referenced in your question.
All of those elements need to be read together based on the entirety of the
circumstances for the individual patient that is requesting medical assistance
in dying. That patient could have a mental illness, but that mental illness
cannot be the sole basis upon which medical assistance in dying is provided. It
needs to be considered in the totality of the patient's circumstances.
In terms of mature minors, in terms of mental illness as a sole basis and in
terms of advance directives, we put that language into the preamble because
there needs to be more study on those issues. Those three issues were not dealt
with, as you know, senator, in the Carter decision. We have had an
incredible diversity of opinion around those particular issues and want to be
able to engage in substantive study to understand the risks and the benefits
around those particular issues in terms of medical assistance in dying.
It was put in the preamble in part to show our commitment to looking at those
issues in more detail, as we heard quite loudly and clearly from many Canadians.
Senator Batters: Also, if you intend to have safeguards in place to
deal with people who may have a very serious physical illness but also have a
mental illness, why wouldn't you have in place a longer waiting period so
perhaps they could actually consult a psychiatrist, which takes so long in so
many places in Canada? Why wouldn't you require a psychiatrist's approval? Why
would you simply allow, just like anyone else, two nurses to provide approval,
assess competency and administer the assisted suicide?
Ms. Wilson-Raybould: Again, senator, I appreciate the question.
The reality of all of the circumstances built into the eligibility criteria,
particularly around "grievous and irremediable,'' is that we wrote into the
legislation a degree of flexibility to ensure or to provide medical
practitioners with the ability, based upon their relationship with their
patient, based upon the understanding of all of their medical circumstances in
their totality, to make that determination. I imagine this is something that
Minister Philpott will be speaking about more when she presents before the
From my understanding, physicians, if there is some uncertainty, may, as a
normal course of their business, refer that out for further —
Senator Batters: But it's not required. If you wanted that, why not
The Chair: Sorry.
Senator Boisvenu: Thank you very much for being here today. I know
that this topic is very complex and very complicated, as it calls on on both
social and moral values. I think that you show a lot of courage in undertaking
the study of this bill with us.
In Quebec, there was a vast consultation on the right to die that led to a
very broad consensus, and Quebec adopted a bill based on that. Obviously in
Quebec we are going to pay great attention to Bill C-14 and its effects.
There is a lawyer in Quebec who is very active in this area, Mr. Jean-Pierre
Ménard, who is the spokesperson for the Quebec Bar on this file, and he is quite
critical of Bill C-14. I would like to hear your opinion about two of his
Mr. Ménard's first criticism is about the fact that the Supreme Court
provides access to medical assistance in dying in cases where Bill C-14 does
not. This is a very serious criticism, concerning persons suffering from
grievous and irremediable medical conditions, but who are not about to die
Mr. Ménard's other criticism concerns the very vague, uncertain, elastic —
those are his terms — notion of "reasonably foreseeable natural death.'' He
suggests that the words "reasonably foreseeable natural death'' be struck from
Bill C-14. Basically, that concept could apply to anyone, because everyone's
death is foreseeable: one week, two weeks, 10 years, 20 years. And so I would
like to hear your opinion on these two criticisms expressed by Mr. Ménard.
Ms. Wilson-Raybould: Thank you, senator, for the questions. I will
just say as an aside that I am learning French, so I appreciate your questions.
To the first one about the purpose of this legislation, the legislation was
put forward as a result of many discussions and after hearing from many diverse
groups. As you said, it's a very complex and challenging issue. It was the
decision that we ensure that we provide that balance between personal autonomy
and vulnerability, and ensure that we provide a peaceful passage for those
individuals who are approaching death and who want to access medical assistance
That was the decision and it was subject to much debate in terms of what that
appropriate balance is right now. We made the decision that it was to provide
that peaceful passage toward death.
In terms of the discussion around "reasonably foreseeable,'' on its own,
proposed subsection (d), as you write rightly point out, everybody's death is
reasonably foreseeable. However, in terms of the way that we've drafted our
definition around "grievous and irremediable,'' all of those elements need to be
read together in the totality of the circumstances. We purposely drafted it that
way to put in place flexibility for medical practitioners to make the
determination of reasonable foreseeability on their own accord, based on the
individual relationship that they have with their patients.
Further, we did not put a particular time frame around what "reasonably
foreseeable'' is, as they have in other jurisdictions, to provide that degree of
flexibility. We thought that 6 to 12 months on one side was somewhat arbitrary.
On the other side, if there were no time limit, or having all of the elements
read together, it would open it up to be much broader.
We provided the ability and placed confidence in medical practitioners to
make determinations for themselves.
Senator Eaton: Thank you, minister. I applaud your courage, and I'm
sorry you were given such a short timeline to get this through.
The preamble states:
Whereas it is desirable to have a consistent approach to medical assistance
in dying across Canada . . . .
Well, we know Quebec has its own law. How difficult do you think it will be
to get all provinces and territories on the same page so people don't go from
province to province "shopping'' to see where it would be easier to get assisted
Ms. Wilson-Raybould: Thanks for the question, senator.
I have had the benefit of engaging with and will continue to engage with my
counterparts in the provinces and territories in terms of this particular piece
of legislation. From the conversations I have had with my counterparts, the
provinces and territories were looking for federal leadership with respect to
I want to acknowledge the tremendous amount of work that the Province of
Quebec has undertaken over many years to put in place their end-of-life
legislation. I recognize that different regulatory frameworks may be developed
in particular provinces, and there may be different approaches in terms of
medical assistance in dying or in terms of regulating medical practitioners and
the like in different provinces.
Senator Eaton: Can they go much wider than you've gone in this bill?
Could one province say, "Yes, we will look at mental illness and underage,'' or
will the federal law take care of that?
Ms. Wilson-Raybould: This is an exercise of the criminal law power — a
federal power — and all of the provisions that are contained in Bill C-14, if it
goes through, will be applicable to all of the provinces and territories. That
is for the eligibility criteria as well as the safeguards that are in place; all
provinces and territories will have to comply with those.
The Chair: Minister, I know it's always difficult for governments to
step back once they've made a public declaration, but I'm curious about what
consideration was given to asking for an extension from the court in terms of
the time for consideration of such significant legislation. It seems to me that
if, at the same time, the request for extension had been accompanied by a
request for an assessment of the constitutionality of the legislation, I think a
court would have been receptive to that kind of a request.
We're hearing concerns now, as Senator Joyal mentioned, from the Minister of
Health in Quebec, the Carter family, the bar in Quebec and others. I understand
that the government is using time allocation, effectively closing off second
reading debate in Parliament. We have to assume that the same will happen at
committee and at third reading.
I understand the time frame set by the court, but why wasn't there an attempt
and why can't you'll still make an attempt to see if more time consideration
could be given to the impacts of this legislation and its constitutionality?
Ms. Wilson-Raybould: I appreciate both questions, and I'm pleased to
be able to respond to them, senator.
On the first point, we did apply for an extension of the 12-month period of
the Supreme Court's deadline. We asked for six months and we received four
months, hence the deadline of June 6. The court did indicate that it was an
extraordinary step to take to increase the amount of time for a government to
put in place a framework. That extraordinary step was taken by the court because
there was an intervening federal election that provided a little more time for
our government to put in place that federal framework. We are committed to
ensuring that we have that in place and are working very hard to do that.
In terms of a reference to the Supreme Court of Canada around the
constitutional validity of this particular piece of legislation, it is my and
this government's commitment, and I believe it incumbent upon all
parliamentarians, to respond to what the Supreme Court of Canada asked us to do.
They threw it back into our court to put in place a law around medical
assistance in dying. I believe that if I were to ask or put in place a reference
to the Supreme Court of Canada, the Supreme Court of Canada would hit that ball
right back at us and ask us to do our jobs as parliamentarians: weighing the
diversity of perspectives that exist in this country; ensuring that we fulfill
our obligations and roles to find that right balance; ensuring that we uphold
the Carter decision with a tremendous amount of respect for the Supreme
Court of Canada; and put in place the best approach for Canada. That, in my
respectful view, is fulfilled by Bill C-14.
The Chair: We have time for a question from Senator Lankin.
I understand, minister, you're going to have to depart briefly and then
Ms. Wilson-Raybould: Yes. My apologies, senators. I'm needed back in
the house for a vote. My officials will still be here, though.
Senator Lankin: Thank you.
I appreciate how difficult this task is and I appreciate the sensitive
balance that the government is attempting to strike. I feel a bit like my old
days at policy discussions, where I said, "I generally support this, but it just
doesn't go far enough.'' I'm in that camp right now.
I'm eager to understand the government's concerns that led them to place
restrictions on access for certain Canadians. People have spoken a lot about
"reasonably foreseeable'' and you've spoken to that a fair bit.
I'm going to go to the issue of advance directives. I come from a family
where there's genetic Alzheimer's. I worry about this myself. For many Canadians
and seniors, dementia of various types is a real-life issue that people deal
I'm able to give an advance directive with respect to a living will directive
of "do not resuscitate.'' In many ways, do-not-resuscitate orders can be a
medically assisted method of dying. We make these orders when we are competent
and judged to be competent.
While I recognize your cautious approach on this, I honestly don't understand
all of the issues at play that give you cause for concern and a feeling that you
need to review it further. So I would like you to explain that. Beyond what's in
the explanatory background paper, what bothers you? What keeps you up at night
about that particular issue?
I also would like to know why on that issue, reasonable and foreseeable; you
would need five years to review? Maybe it's a shorter period of time to delve
into those issues. Maybe the five years is about the monitoring system,
compliance monitoring, some of the other mechanisms of the bill, but not maybe
these difficult issues that many Canadians want to see in place for their own
Ms. Wilson-Raybould: Thank you for those questions, senator, and I
hope that I can answer each of them.
There is a five-year review of the legislation, and, as you know, there isn't
a time frame around the studies. We are committed to having one or more
independent studies on those difficult issues that raise a lot of questions for
Canadians in terms of how we can ensure that people are providing that consent.
We are, as we all know, talking about death and sanctioning medical
assistance in dying and what is the appropriate framework for us to put in
place. The balance is always at top of mind.
You ask what keeps me up at night. We all have our own personal reflections,
personal experiences, our own values, who we are as human beings and our
appreciation of life and wanting to ensure that our relatives are comfortable.
You mentioned Alzheimer's. Without getting too personal, I had a grandfather
that suffered from Alzheimer's for 16 years. The thoughts that have gone through
my mind, not just with respect to my grandfather, but I know everyone around the
cabinet table provided their own reflections and thoughts with respect to their
own personal experiences.
We're talking about a transformational shift in our country in terms of
discussions around death and dying. The safeguards that we put in this
legislation are to ensure that when that final step is taken that we, as much as
we can, protect vulnerable people.
If we're thinking about advance directives and having an understanding and
clarity at the time when medical assistance in dying is going to be provided, an
individual has to have that conscience and understanding and thoughtfulness to
know that they are providing informed consent.
One can sign on to an advance directive, and 10 years later there isn't
necessarily a confirmation that that is still the desire that the person would
have if they had gone down a road into dementia or, in terms of Alzheimer's,
they weren't able to assess or understand the nature of the decision that they
All that said, these are really difficult issues, and the feedback that we
received was that we need to have more study around them. We need to ensure that
we weigh all of the benefits and the risks, and that's what we're committed to
doing in terms of these more difficult issues.
As you say, senator, advance directives have been raised a substantial
amount, but with something as black and white, we need to ensure that we put the
protections in place so that the vulnerable are protected.
The Chair: Thank you, minister.
As the minister departs, we will resume with Justice officials until the
minister returns. I believe they were all introduced earlier. If there is anyone
else, please speak up.
What I'm going to do, with the committee's concurrence, is start a new list,
because the list I have for the second round of questions dealt with questions
to the minister. So I think it would be appropriate for anyone who wishes to ask
questions of the officials that we will set a separate list for that.
We'll begin with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you for your presence here today.
I want to talk further about the advance directives, and I'm sure you have
looked at other countries. I understand that the Belgium government after every
five years reassesses the directives or goes back to see if they still want to
give that directive. Can you give us an idea from a technical aspect what kind
of work was done so that the advance directives were not considered?
Mr. Pentney: With the studies that were done by the provincial and
territorial advisory committee and the federal external panel and followed by
the special joint committee work, clearly one of the considerations was whether
people who are subject to advance directives should be included in the
legislation. It's fair to say that the evidence heard and explored by all of
those bodies indicated that advance directives in respect of ordinary medical
treatment, outside the medical assistance in dying, present a series of
complexities. Although they're quite common, they're not uniform across the
country and present a series of challenges. It's also recognized that many
jurisdictions don't permit it and that where it is permitted, as you said in
Belgium, there is a requirement to renew the advance directive every five years.
I would also say that Canada is unique in doing this in that we have a
federal criminal law power, and this is an exercise of the federal criminal law
power. Health is a shared jurisdiction, but as has already been indicated by the
minister and as the senators would know, a significant amount of the work to
give effect to this and regulate and implement it will involve provincial
regulations. The rules and roles around advance directives are not set by
In our discussions with them, the provinces and territories wanted to know
what the federal law would be, other than Quebec which is engaged in a long
study, so they could do their planning. As has been noted previously, we've done
this, notwithstanding the request made at the Supreme Court, under a deadline.
There was a series of considerations in terms of whether or not and how the
government would include advance directives at the end. As you'll see from the
bill, the decision was that right now this transformational change being brought
before Parliament and put before Canadians is limited to competent adults. But
recognizing that issues around advance directives are very much alive and in
question and will require a complex set of reviews and studies including with
the provinces and territories and regulatory authorities, the decision was made
to put the bill before Parliament as it stands and to make a solemn commitment
to launch independent studies.
Senator Jaffer: In our provinces we have representation agreements
that set out different things as to what measures to take if somebody becomes
very ill. From what I understand you to say, will the provinces look at advance
Mr. Pentney: As indicated in the preamble, the federal government will
launch the studies, but there will be active discussion with provinces,
territories, regulators and others in respect of each of those three topics.
Although they would be federally led studies, they would involve, as did the
federal external advisory panel and the special joint committee, you would
expect to engage a lot with provincial and territorial regulators because
provincial rules establish what, where and when advance directives are allowed.
That varies across provinces right now. Also, provincial rules and regulators
will be responsible for giving effect to this. If there were a shift in the
federal legislation, they would be deeply involved in administering that. All of
that points to the need to work carefully with a number of experts, including
the provinces, territories and provincial regulators, to assess this.
Senator McIntyre: My question has to do with reasonable and mistaken
belief in section 245 of the Criminal Code. I draw your attention to clauses 2,
3, and 6 of the bill. As you know, clause 2 exempts individuals from culpable
homicide and aid in dying in a situation of reasonable but mistaken belief.
Clause 6 proposes to amend section 245 of the code to exempt physicians, nurse
practitioners and persons assisting them.
That said, I note that the proposed amendment to section 245 does not include
the provision concerning reasonable but mistaken belief. Why is it that the
amendment to section 245 does not include reasonable but mistaken belief, or
perhaps we should have a separate clause?
Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department
of Justice Canada: Section 245 is presently in the Criminal Code. It's the
offence of administering or causing to be administered a noxious substance to a
In the court ruling in Carter, the Supreme Court said only two
sections of the Criminal Code were really at the core of the prohibition against
medically assisted dying: sections 14 and 241(b). They did not identify this
offence as being one that really stands in the way of medical assistance in
dying. Nonetheless, we looked at the wording of the offence, and it's
technically possible that it might apply to the circumstances of medical
assistance in dying. It is extremely unlikely that this offence would ever be
It's merely out of an abundance of caution that the exemptions were provided
for section 245, not replicating the entirety of the regime of exemptions but
just those simple basic ones.
The other way I can complete the answer is to say that the provision on
reasonable but mistaken belief is actually a codification of a very
long-standing principle of the common law. That principle was included in the
legislation to give physicians, nurse practitioners and all other providers
absolute confidence that if they were acting in good faith but happened to make
a mistake while behaving reasonably, they could still benefit from the
exemption. Even if that had not been stated in the other sections, that
principle of the common law would still be available. It's still there in the
rare likelihood that there ever would be a charge under section 245.
Senator McIntyre: Bill C-14 creates a new offence for forgery. As you
know, a forgery offence already exists in the Criminal Code at section 366, if
I'm not mistaken.
I have two questions. Why is a new forgery offence in Bill C-14 when section
366 already exists? And in the case of the new forgery offence, death may
result, yet punishment is less for this offence than for the existing forgery
offence under section 366.
The new forgery offence included in Bill C-14 is a hybrid offence, so the
Crown can proceed either summarily or by indictment. If it proceeds by
indictment, the maximum is 5 years of imprisonment and if it proceeds summarily,
it's 18 months in prison. Why do we have this double status for forgery since
forgery already exists under section 366 of the Code?
Ms. Klineberg: Thank you for the question.
On the first part about why it's there when there is an existing general
forgery offence in section 366, the answer is that it's not legally necessary
that there be a distinct offence for forgery in relation to the documents
related to medical assistance in dying. However, it was thought to be beneficial
to bring to everyone's attention the importance of these documents and the
importance of maintaining the integrity of these documents and to signal to
enforcement authorities that this is a distinct form of wrongdoing that they
should keep in mind if ever it comes to their attention.
In terms of why the punishments would be different from the broader and more
general forgery offence, there might be circumstances of forgery that are on the
lower end of the scale of seriousness. Not every incident of forgery might
directly lead to the death of a person in a wrongful circumstance. It's
contemplating situations that are still serious that we want to bring to the
attention of participants in medical assistance in dying.
Should be there a case where a document is forged, it might be forged by the
medical practitioner or the nurse practitioner. Certainly they could be subject
to the charges related to murder or assisting a person to die by suicide if
they've engaged in any wrongdoing.
Senator Baker: I suppose you could say that my question is outside the
bounds of this bill, but it has been raised by Senator Lankin: advance
In Canada, I think every province has legislation now. Perhaps one or two do
not have legislation regarding advance directives. There is no overlap with
federal jurisdiction. It's entirely provincial, involving end-of-life
situations, palliative care, going right down to palliative sedation, which
would make somebody unconscious until death.
I'm wondering about advance directives, as they stand. I note, Mr. Pentney,
that you raised the question. You said that perhaps it's prevented in that this
legislation involves competent adults. Every piece of legislation on advance
directives involves competent adults and end-of-life care. So the question on
the mind of someone who knows a lot about advance directives would be: What is
preventing the province from incorporating this particular bill we're talking
about into their jurisdiction of advance directives?
It's a legal question. You don't have to answer it if you don't wish to.
Mr. Pentney: I would be happy to, senator.
This is an exercise of the federal criminal law power. A province can act
within the box that's created in terms of an exemption from otherwise criminal
Senator Baker: End of life activity, palliative care.
Mr. Pentney: Authorized and consented to by a competent adult. That's
the limit right now in the bill. If the bill is adopted as it stands, that will
be the limit of the exemption for criminal activity, and the province simply
cannot expand beyond that.
To the extent that a province tried to exercise its jurisdiction to allow an
exemption under the Criminal Code for an individual —
Senator Baker: You're saying it's an exemption.
Mr. Pentney: That's technically what Bill C-14 creates. It reproduces
a general criminal prohibition and says that where medical assistance in dying
is provided in accordance with the rules set out in the criminal law, it is not
a crime. The only exemption that's allowed now is for a competent adult.
Senator Baker: Right now, every province has legislation involving
competent adults that outlines a procedure for end-of-life procedures in
palliative care which involves, as Senator Lankin has pointed out, certain
procedures that would bring on death. She's correct in that.
You're saying, definitively, that you don't know of anything that would
exempt the provinces from continuing on with their advance directives involving
this very same thing, the very same subject matter. Or would you say there is a
legal point here that may be visited down the road?
Mr. Pentney: I'm saying that the bill before this committee creates a
limited exemption from otherwise criminal activity. It limits the scope of that
exemption to a situation where a competent adult, who is competent at the time
of the request, has authorized the request and the other safeguards are
You may wish to explore this with health officials in terms of how it will
relate, but in terms of the exercise of the criminal law power, an adult has to
be competent at the time of the request under the bill that's before the
committee now in order to qualify for the exemption.
Senator Baker: That's what an advance directive is.
Thank you. Good answer.
Senator Plett: I guess this is a follow-up on what I asked earlier.
When I spoke earlier about nurse practitioners, both the minister and you, Mr.
Pentney, indicated that some of this fell under provincial jurisdiction and that
the provinces would make decisions. Then Senator Eaton asked the question of
whether the federal government was the top body and whether the provinces needed
to comply with federal legislation, and I got the impression that you said yes.
I'm hoping that you won't shuffle this off to the provinces and, rather, will
answer this on behalf of the federal government. It's with regard to
In paragraph 132 of the Carter decision, the Supreme Court expressly
recognizes the need for balance between
Charter rights of patients and those of physicians and allied health
professionals; for example, conscientious objection. Again, to date, the answers
we've received from the minister are that you're going to allow the provinces to
I believe, and I'm sure many others do too, that we're crossing a legal and
ethical divide here, and we are talking about the Canadian Charter. What
harm would there be in making this protection for physicians explicit in this
Mr. Pentney: Well, thank you for the question. Maybe I can start, and
Laurie can supplement the answer.
The Supreme Court in Carter recognized, among other things, that
health is an area of shared jurisdiction. There are aspects of it that can be
addressed by the federal government and others that can be addressed by the
provincial government. They acknowledge that the issue of conscience rights is
something that will need to be considered as it goes ahead.
The second element of the answer, I think, is that nothing in the bill
compels any medical practitioner to provide this. The bill creates an exception
in the criminal law and an authorization, but does not compel.
The third element would be that the rules about what medical practitioners
must do and how they must do it in terms of professional practice are provincial
rules. It's simply not within the scope of the federal criminal law power to
prescribe those areas of activity, and there are other Supreme Court of Canada
decisions involving efforts by the federal government to regulate health care
that have determined there are limits on the scope of federal powers.
The last part of this would be that whether or not there is anything in this
or other legislation, under the Canadian Charter of Rights and Freedoms,
physicians, nurses, nurse practitioners and you and I have conscience and
freedom of religion rights that are guaranteed by the Charter and would
apply, as I say, whether or not this is here.
Because the federal law doesn't compel anyone to do anything in that sense in
terms of medical practitioners, it wasn't viewed as impinging on the conscience
rights of physicians. The government has certainly recognized those are
important considerations, and we know there is active consideration and
discussion going on in provinces and territories around it.
Senator Plett: Again, this is probably provincial jurisdiction, but we
know very well that in abortion laws, for example, people that do have
conscientious objection to this have been either let go from their positions or
they get involved. What's preventing this from going in exactly the same
direction, and why would we not want to guarantee them that they will not have
to take part, nor will they have to refer them to anything other than a
Mr. Pentney: Again, I think that nothing in the bill compels medical
practitioners, in that sense, to participate or to do anything.
Senator Plett: Unless the provinces tell them to.
Mr. Pentney: As I said, I think the other examples you're referring to
relate to the nature and scope of provincial decisions around regulatory
expectations for doctors and nurse practitioners.
Senator Joyal: I would like to come back to the issue of balance
between the objectives stated in the preamble and the impact of the Carter
decision. I think the bill fails because it doesn't recognize that what is
included in Carter is, essentially, assisted suicide.
The Quebec law is essentially a terminally ill law. Carter never gave
the terminally ill the right to access physician- assisted death. By excluding
assisted suicide from the bill, in my opinion you would have to allege under
section 1 of the Charter that, in a free and democratic society, it is
allowed to exclude assisted suicide.
But in the middle of paragraph 6 of the preamble states that the bill
"strikes the most appropriate balance between the autonomy of persons who seek
medical assistance in dying'' — the persons to whom Senator Lankin referred —
"on the one hand, and the interests of vulnerable persons in need of protection
and those in society, on the other.'' In other words, you assimilate, in your
reasoning, people who look for suicide assistance as vulnerable persons.
In my opinion, it fails. No court will recognize that the objective of this
bill meets the criteria of Carter. Because you limit this bill to
foreseeable death of terminally ill people and count on the Quebec legislation,
I think you go much below what Carter states. That's where it is going to
fail. And you know it will be challenged very soon if Parliament decides to
adopt it without removing the criteria that you have added to Carter to
limit the scope of Carter. That's where I feel the explanation you give
Mr. Pentney: Thank you, senator. I will start and maybe my colleagues
will wish to supplement.
First, as the minister noted, this represents a seminal change in the law in
Canada authorizing physician-assisted dying as an important legislative choice.
In doing that, the government certainly did pay careful attention to Carter.
A careful reading of Carter would indicate, as the minister said, that a
complete prohibition on physician assistance is a violation of section 7.
Second, a complex regulatory regime is better designed by Parliament than by the
courts. Third, it would be up to Parliament to decide whether to take up that
obligation and to try to create a complex regulatory regime. Fourth, if they did
so, a great deference would be shown. The court drew the distinction between an
absolute blanket ban, which it said is not a complex regulatory regime. On the
other hand, a complex regulatory regime, they acknowledge in black and white,
will be given deference.
A careful reading of Carter has to include the number of references to
the situation of Ms. Taylor and people like her. The culminating and core
paragraphs of Carter are 126 and 127. I'll quote from paragraph 126:
To the extent that the impugned laws deny the s. 7 rights of people like
Ms. Taylor they are void by operation of s. 52 . . . .
In paragraph 127, they set out the definition of "grievous and irremediable''
and then state:
The scope of this declaration is intended to respond to the factual
circumstances in this case. We make no pronouncement on other situations
where physician-assisted dying may be sought.
Next, the courts that have interpreted Carter since in the individual
applications, and I quote Justice Perell in Ontario in the case of A.B.
There are publication bans on the names around these individuals, but to quote
him on his interpretation of the scope of Carter, he says it refers to:
. . . a grievous medical condition connotes that the person's medical
condition greatly or enormously interferes with the quality of that person's
life and is in the range of critical, life-threatening, or terminal.
Justice Martin in Alberta, again quoting Carter and giving effect to
it in a case before the court:
I have no difficulty in concluding that ALS is a grievous and irremediable
medical condition. It is widely understood to be a progressive and
ultimately terminal disease that has no cure.
In all of those circumstances, the government has decided that it will focus
first on this step, on people who are heading towards death. It has neither
chosen a time limit of weeks or months, as is either in perhaps the Quebec
legislation, depending on how you interpret end of life, but definitely in the
American; nor the alternative of simply leaving it open ended, that a person who
is suffering and by virtue of the suffering should have access to it.
I would again commend the legislation to honourable senators.
The grievous and irremediable condition is defined by four things,
culminating in "death has become reasonably foreseeable.'' By virtue of all of
those circumstances, the government has decided that is the policy choice that
it wants to put before Canadians and before Parliament, and that is the choice
it will defend.
I think on any interpretation of Carter, it does not forbid that, and
so it puts it back to Parliament to determine whether that is a limit that ought
to now be put in place. That's the clear choice that's before the court. It's
not simply compliance with Carter but it has to be compliance with the
Charter, and ultimately it will be the question of whether or not this decision
for Canada represents a reasonable limit prescribed by law in a free and
Senator Batters: Ms. Klineberg, in providing us with a briefing on
this bill this week, you described some requirements that the federal government
has included in this bill. You detailed the two different types of assisted
dying. First of all, there is euthanasia, where lethal injection would be
administered by a medical practitioner, and secondly, medical-assisted suicide,
where a prescription is written by a medical practitioner and then the patient
would take that prescription medication themselves.
For the euthanasia situation, the Liberal government bill indicates that the
doctor or nurse practitioner would determine the patient consent initially, and
then they would have to reconfirm that consent right before that doctor or nurse
practitioner would administer that lethal injection.
But for assisted suicide, the determination of patient consent would be
determined initially when they're given the prescription. It's possible that the
patient could keep that prescription without using it for, I don't know, three
years. There's no requirement to re-determine consent.
Given that, I put it to you that this arrangement basically does provide
Canada with advance request or advance directive. In a situation that could so
drastically change where we're dealing with very vulnerable people who could be
harmed, potentially killed — no one may ever know about those circumstances —
why would such a wide open situation be allowed contrary to the government's
intent voiced in the preamble that advance directives would not be allowed under
Ms. Klineberg: There are several aspects to that question, and I'll do
my best to answer them.
First, in terms of the ability of a person to obtain a prescription for the
purposes of self-administering a substance to cause their own death, it is still
the person who, when the time comes, would be self-administering the substance.
They would have to have some degree of ability to do that for themselves, so
it's still their choice when they take that action to do it.
In that sense it's not an advance request in the way in which that term is
used when we're talking about advance directives. The patient is still the one
responsible for taking the action. They take the action at a later point than
the point at which they receive the substance, but it's still their choice at
every step of the process. There's nothing in their level of ability to make the
decision for themselves that changes.
The Chair: Ms. Klineberg, I have to interrupt. I've just been advised
that the Minister of Health is standing and waiting. I didn't recognize her and
I'm going to ask you to expand on that later because we're going to ask you
to remain until the Minister of Justice returns, and senators who have not yet
posed their questions will have an opportunity later to do so.
Senators, now joining us is the Honourable Jane Philpott, Minister of Health
Canada. Also at the table from Health Canada is Simon Kennedy, Deputy Minister.
The minister is with us for approximately an hour. After that, Mr. Kennedy
will be joined at the table by his colleagues from Health Canada. We're jumping
all over the place today because of the ministers' requirements to be in the
house. We are asking officials from Justice to stay. The Minister of Justice
will return later on.
I should mention the other officials from Health Canada: Abby Hoffman,
Assistant Deputy Minister, Strategic Policy Branch; Helen McElroy, Director
General, Health Care Programs and Policy Directorate, Strategic Policy Branch;
and Sharon Harper, Manager, Continuing Care Unit, Strategic Policy Branch.
Minister, thank you for being here. I apologize for keeping you cooling your
heels, but you now have the opportunity to make your opening statement.
Hon. Jane Philpott, P.C., M.P., Minister of Health: Thank you very
much, Mr. Chair and honourable committee members. I'm very pleased to be here
today to speak on the subject of medical assistance in dying. I haven't had the
opportunity to meet all of you in person, but it's a real honour to appear at
this committee and to respond to your questions and concerns.
As you may know, earlier this week I had the opportunity to present and
answer questions from the House of Commons Standing Committee on Justice and
Human Rights, and I would like to take the opportunity today to reiterate some
variation on those comments before taking your questions.
I'm also aware that the Minister of Justice has presented earlier today and
will be coming back. There are many areas, as you know, that she has a
particular ability and expertise to speak to. I will be using this time to speak
to questions that may relate to my Health portfolio and will be pleased to
answer your related questions.
As you know, last year the Supreme Court of Canada declared that the Criminal
Code prohibitions on assisted dying were unconstitutional, and now the Senate
has the opportunity to review the proposed government legislation that will
amend the Criminal Code to allow medical assistance in dying.
Some of you may know that I'm a family doctor. I've had countless
conversations with people at the end stages of their lives. I can tell you, as
you probably very well know yourselves, that conversations about the end of life
can be incredibly challenging, yet it's such an important conversation for us to
have, whether it's with our patients, our loved ones, or whether it is as a
society having a conversation about what we would desire at the end of our
They are difficult conversations sometimes for health care providers because
in some cases their education may not have adequately prepared them for
discussing, let alone providing, the support that patients desire at the end of
First and foremost in our consideration of these matters was our
responsibility to protect the most vulnerable in society, and our proposed
legislation will do this, while at the same time respecting the decision of the
We want those Canadians to know that we understand their concerns and that we
believe that the safeguards put in place in this bill will mean that the rights
of the most vulnerable will be protected.
We have heard from others who feel that the proposed legislation doesn't go
far enough, who would like to see eligibility expanded in certain areas. We
would like to thank these Canadians as well for speaking up on behalf of people
who are suffering.
As we strive to meet the needs of Canadians at the end of life, we encounter
a system that can sometimes frustrate attempts to respect personal autonomy.
We all want a system where respect for individual autonomy is the cornerstone
of all policies. We also want a system where the rights of the most vulnerable
will be respected and protected. This bill is an important piece of the puzzle,
so that Canadians have access not only to a good life, but also to a good death.
It's about empowering patients to take control of their own narrative and
ensuring that Canadians can receive compassionate care as they approach the end
As you know, we listened to Canadians and stakeholders before we developed
this legislation. As the Minister of Justice has no doubt articulated, we
reviewed the proposed legislation very closely to ensure its consistency with
the Charter. We looked closely at the Carter decision to ensure that
individuals in those circumstances would have access to the care they needed to
alleviate suffering, including the option of medical assistance in dying.
Our commitment as a government was to respond to the Carter decision.
That necessitates changes to the Criminal Code that will protect health care
professionals as they support patients in their decision making.
At the same time, we are committed to taking the time required to address
additional questions that are more complex where we believe that more time and
study is needed.
As an example, the bill sets a minimum eligibility age of 18, which is the
age of majority in most provinces and territories. This approach seems
appropriate to us in light of the unique and irreversible character of such a
We know that the capacity to make decisions on health is not related strictly
to age, and that depending on the province the right to refuse medical treatment
or to consent to it may be obtained as early as at 14 years of age, for
We faced similar challenges in considering this matter of advance directive.
The Supreme Court did not deal with this issue in Carter, and the views
of Canadians, as you're well aware, are deeply divided.
After 30 years of practising medicine, I am well aware of the concerns of
Canadians who suffer at the end of life, and I understand why some people would
like to be able to provide advance directives so as to be able to access medical
assistance in dying. However, we must take into account the complex questions
related to policy and medical practice that are raised by advance directives.
By their very nature, advance requests are made before they are needed. Even
if reviewed regularly, they would be enacted only when a person has lost
competence or is no longer able to communicate. This means that the final
consent, a key requirement in most assisted-dying regimes around the world,
could not be verified by a health care provider or anyone else.
Medical stakeholder groups pointed out that advance directives concerning
other kinds of medical treatment can be very difficult to respect, and that
repercussions would be even greater in the case of medical assistance in dying.
The proposed legislation also, as you know, does not permit eligibility
solely on the basis of suffering from mental illness. There is no denying that
mental illness can cause profound suffering. However, illnesses such as chronic
depression, cognitive disorders and schizophrenia raise particular concerns with
respect to the matter of informed decision making. We have consulted numerous
stakeholders on this issue and concluded that the nuances are not sufficiently
understood at this time to allow safe and appropriate legislation to be crafted.
To that end, the government is making a commitment to mandate one or more
independent studies on the questions of requests by mature minors, advance
requests and requests where mental illness is the sole underlying medical
Bill C-14 also includes a clause which requires Parliament to conduct a
review of the legislation five years after Royal Assent. This will allow for a
parliamentary review of these complex issues as well as the evolving experiences
of Canadians in implementing medical assistance in dying.
Finally, I cannot discuss this legislation without a reaffirmation of the
importance of improving access to high-quality palliative care for all
Canadians. Our government is firmly committed to investing in this area, and I
look forward to working with provinces and territories to ensure equitable
access to all options for care at the end of life.
We believe that this bill furthers the individual autonomy of Canadians in
compliance with the Supreme Court ruling in Carter, while ensuring the
protection of vulnerable Canadians, as well as the conscience rights of health
We know that this legislation is only part of the conversation. That's why I
want to take the opportunity to highlight our government's commitment to
palliative care. Canadians have resoundingly told us they want to receive care
at home, and we have listened and are prepared to make significant investments
in the order of $3 billion over the course of our mandate to help deliver better
home care for Canadians, including palliative care.
I have already contacted my provincial and territorial colleagues to discuss
the necessary changes to our health care system so as to allow home care,
including palliative care, which is a shared priority.
The bill we have tabled is the product of careful consideration, of the need
for personal autonomy, access to health care services, protection of vulnerable
people and the conscience rights of providers, as well as the clear support that
Canadians have voiced for this change.
I want to thank everyone who has thoughtfully and respectfully engaged on
this challenging issue. I know this committee will hear a wide range of views
and opinions over the coming days. I look forward to following your discussions,
and I am very much looking forward to time to interact this afternoon.
The Chair: Thank you, minister.
We'll move to questions now, with Deputy Chair Jaffer.
Senator Jaffer: Thank you, minister, for being here. I'm very pleased
to hear you emphasize palliative care. As you know, we have all received many
emails, and one of the biggest criticisms is about palliative care. So I
encourage you to move fast on that.
I have many questions, but I'll start off with proposed paragraph
241.2(2)(a), where it says:
(2) A person has a grievous and irremediable medical condition if
(a) they have a serious and incurable illness, disease or
I'm curious as to why you used "incurable'' as a synonym for "grievous and
irremediable''. "Incurable'' as I understood when I read the Carter
decision, was not in that, so you have expanded it a bit. I would like to hear
your reasoning for that.
Ms. Philpott: First of all, just to follow up on your comments about
palliative care, I want to say that I know the Senate has done some incredible
work on this. Several senators have produced some very important reports about
the need for palliative care. I look forward to working with folks in the
Senate. We will need your support as we move forward on that. I'd be happy to
discuss that in more detail later.
In terms of the wording you are referring to, there was an attempt made to
give some measure of an understanding of the concept of grievous and
irremediable. There was a need for elaboration to clarify that, for instance,
there are grievous and irremediable conditions that may be benign, episodic and
self-limited. There was a desire, within this legislation, to put enough of a
framework around it that it would support health care providers who were trying
to determine whether someone would qualify.
Senator Jaffer: Thank you for recognizing the work of the Senate on
palliative care. I would be remiss if I didn't mention former Senator Carstairs
for the tremendous work she has done on palliative care.
I would like to follow this up with the issue of the nurses. We are fortunate
that you are a medical practitioner as well. A number of questions have come up
about nursing. I, and I'm sure many of my colleagues, have received emails about
you including nurse practitioners in the bill. One of the challenges that I have
heard of is that you may include this. But in my province of B.C especially,
I've heard from nurses saying, "We've been told that we may be included in the
bill,'' but their provincial bodies have not set up a protocol as to how they
can practise this. I'm wondering what discussions you've had with the provincial
professional bodies as to these nurses. You may exempt them, but they may get
punished by their provincial bodies.
Ms. Philpott: Thank you. It's an excellent question.
I will just let you know that I did meet with Senator Carstairs, whom I
respect greatly, and had great conversations with her, and I look forward to
working with her in the future as well.
In terms of the matter of nurses, as you can imagine, there are a number of
reasons this was put in place. I must say I have tremendous respect for nurses
and nurse practitioners, who I've worked with closely over the years. I know
that in my own province of Ontario, for instance, nurse practitioners enjoy
quite a wide scope of practice. It's not the same as family doctors, but in many
regards there's a large overlap in scope of practice between nurse practitioners
and family doctors. In one part, we wanted to acknowledge, of course, that this
was not unreasonable to include in their scope of practice.
I would say that the largest driving force for why we decided to include
nurses and nurse practitioners in the legislation was the fact that we need to
ensure access. So when we determine as a government that we believe access to
medical assistance in dying is perceived to be a medically necessary service, we
need to be sure, as you know, under the Canada Health Act to deem that all
medically necessary care be available and accessible across the country, as part
of the principles of the Canada Health Act.
In remote and rural situations, we knew that there would be challenges around
access. As you may know, in the Far North, for example, there are many places
where doctors are not readily available.
The matter of regulations, as you very clearly said, lies in the hands of
provinces. I can tell you that my officials are working very closely now with
the provinces and territories around those regulations. We hope that they will
be rather consistent across the country, but we recognize that the regulations
as to what lies within the scope of practice do differ somewhat from province to
province. I will be very much looking forward to working with the provinces and
territories to encourage them to look at how far they can allow the eligibility
of this particular kind of care to be part of the scope of practice of nurse
Senator White: Thanks to both of you for being here, particularly the
minister. Twice now, I've heard this afternoon about the parliamentary review in
five years, which I think is excellent.
What type of reporting requirements will we put in place with this
legislation so that we can actually look province by province to ensure that
it's being followed, first, and, second, that we have a good understanding of
what it should look like in five years?
Ms. Philpott: That's a very important question. I think what may not
come out as strongly in the legislation but you may have heard us talking about
as the legislation was tabled was the fact that we will be putting in place a
rigorous monitoring system. It reads in the legislation that there's a
requirement for the medical practitioner to report and to fill out appropriate
paperwork related to the practice.
We've been working with the provinces and territories. Some of them have done
quite detailed work in terms of looking at the kinds of details they would
require health care providers to report. I would like to see not only
quantitative details in terms of how many people have accessed the care and the
actual medication they received and the the timing was around that, but
hopefully there will be much opportunity as well for qualitative reporting in
terms of the challenges that were faced.
One or more committees will get under way to address these more complex
questions that we don't feel that we were able to fully land on up to this
point. That monitoring system, which will be a pan-Canadian system, may have a
little bit of variation from province to province, according to their decisions
on that. I think that we will have quite a robust amount of information
available that will inform those decisions.
Senator White: What would those committees look like that will be
doing that work? Are we talking about committees of Parliament, committees of
government or committees of Justice?
Ms. Philpott: My understanding is that they would be committees of
Parliament. Having said that, I don't think that we've landed entirely on what
those are going to look like. We have made a commitment to provide more details
on that in the fall, and that would be an area that I think the Senate would be
in a good position to be able to give some recommendations on. We have made the
commitment in the legislation to establish one or more committees to look at
those complex matters.
Senator White: Thank you very much, minister.
Senator Cowan: Welcome, minister. I have a couple of questions. I'll
try one, and, if I don't get to the second, I'll defer it to the second round of
You've spoken a number of times about the importance of having conversations
with the provinces and territories, and these are ongoing, but what happens if
one or more of the provinces simply doesn't take any legislative or regulatory
action? I know one, at least, that has no plans to do so. Do you think that
inaction or lack of action would have an effect on your desire, and I'm sure our
desire, to make sure that whatever regime is put in place is sufficiently robust
that it would provide equal access, equal opportunity, equal regulation and
equivalent availability of this medical service from coast to coast to coast for
Ms. Philpott: Thank you for that question.
As you know, fundamentally this is a piece of legislation that addresses the
Criminal Code in terms of protection for health care providers to exempt them
from criminal liability in terms of their participation in supporting patients
with medical assistance. In that sense, a medical practitioner in the country
working within this legislation and the associated regulations — you folks are
the experts on this — would not be prosecuted.
You point out the fact that there may be some arguments from some provinces
that they don't necessarily want to agree that that's a medically necessary
Senator Cowan: Let's assume that one or more provinces makes no
legislative or regulatory intervention at all. Are you satisfied that if this
bill were passed in its current form, there would be equivalent equal
opportunity and equal access across the country?
Ms. Philpott: I'm confident that this would provide adequate
protection for health care providers.
Senator Cowan: I'm not talking about health care providers. I'm
talking about access for the patient.
Ms. Philpott: Access is another question, but as you know we have the
challenge of access on other issues in Canada that we deem to be medically
necessary services. We've had that conversation with provinces around other
issues of access, and we've actually made encouraging progress in terms of
making sure that medically necessary services are accessible across the country.
Senator Cowan: There has been some discussion — and I think Senator
Lankin raised it earlier — around the issue of palliative sedation and
do-not-resuscitate orders, which are common across the country. You, as a
practitioner, have a great deal of experience with that sort of thing and
providing pain medication for people, knowing full well that if sufficient
medication is provided in increasing doses, the result is death.
How do you compare that that's okay — and we and you understand that — but
yet you're not prepared to recognize the desires, I think, of large numbers of
Canadians to have embedded in this legislation the right to provide by way of
advance directive for medical assistance in dying? How do you reconcile those
Ms. Philpott: You're absolutely right that there have been a number of
approaches to end-of-life care in the past where people make the decision not to
deliberately extend life. By instituting a do-not-resuscitate order, it's an act
of omission as opposed to an act of commission. This legislation allows an act
to be committed as opposed to not instituting an act that would keep a person
Having said that, I think what you're getting at is the issue of advance
requests that are obviously acceptable in the case of a do-not-resuscitate order
but we've not necessarily implemented them here. There are a number of reasons
that we took into consideration for deciding not to include advance requests at
this time. In part, it's related to some of the challenges we know health care
professionals find in instituting other kinds of advance directives. We heard
this quite loudly and clearly from organizations like the Canadian Medical
Association and other agencies, that it can actually be incredibly challenging
to know in advance and be able to reaffirm a person's wishes in advance.
So while those are very different circumstances, it's part of what made us
realize that we weren't ready to make a decision on advance directives at this
Senator McIntyre: Thank you, minister, for being here today.
I would like to go back to the issue of the monitoring regime. The bill is
very clear: It authorizes the Minister of Health to make regulations creating a
monitoring regime. For example, new subsection 241.31 creates legal obligations
on physicians, nurse practitioners and pharmacists. It also creates offences for
failing to comply with regulations on monitoring.
That said, does Parliament have jurisdiction to collect information for the
purpose of monitoring medical aid and dying? Should we leave this to the
I'm asking you this question because the external panel on options for a
legislative response to Carter heard support for oversight mechanisms,
but there was no agreement as to whether it was appropriate for that oversight
to be done at the federal level. Could I have your thoughts on that, please?
Ms. Philpott: You've alluded to some of the challenges in our
wonderful system where health care is a shared responsibility between the
federal government and the provinces.
This is something where we believe the federal government needs to play a
role, and many provinces are very happy that we will play a role in taking some
responsibility and using some of our federal resources — things like the
Canadian Institute for Health Information. My deputy minister can give you an
idea of some of the other pan- Canadian organizations that are comfortable with
collecting pan-Canadian data. So we are well placed to try to gather some of
As you have indicated, however, it may be that we would suggest a particular
set of data that we would like to collect and monitor this information. We will
recognize, of course, that provinces will have jurisdiction in terms of further
developing that. They may add to that themselves, or there may be some portion
of it that they won't be a part of, but it will be an area that we'll need to
discuss very closely with the provinces and territories.
On the basis of past experience, we have had a very positive relationship
with the provinces and territories on the gathering of health information to
inform future decisions.
Senator McIntyre: And hopefully you'll reach a consensus.
Ms. Philpott: We certainly hope so.
Senator McIntyre: Thank you, minister.
Senator Joyal: Welcome, Madam Minister.
I have a problem with your intention to defer the implementation or the
access to physician assistance in dying to three groups of people: advance
directives, mature minors and mentally ill people. I will tell you why. Legally,
I think your bill is going to be struck down. It's because you exclude those
people without determining the number of times within which those people will
have access to their rights.
We're talking about a right recognized in the Charter. A patient has a right.
A patient in Canada who suffers grievously and irremediably and who cannot
tolerate that suffering has a right to physician-assisted dying. This is
Carter. When you exclude those three categories without establishing a
clear deadline within which Parliament will legislate the specific conditions or
safeguards that might be totally reasonable and rational, I think you fail to
implement the right in Carter and the right they have under the Charter.
We heard that at the special joint committee, from the expert panel appointed
by the previous government. Benoît Pelletier, the lawyer, told us that by
excluding the mature minor, you will open a challenge under section 15. In a
decision in 2009, the Supreme Court has already established a criterion under
which a mature minor has a right to decide for himself or herself. It is
paragraph 95 of A.C. v. Manitoba (Director of Child and Family Services).
The court stated seven clear criteria. That was in 2009, seven years ago. So the
Supreme Court has already established the benchmark.
For you to just say, "We'll push that in the future,'' in my opinion deprives
patients. It's not the rights of doctors; it's the rights of patients we're
talking about here — the right to have access to physician-assisted dying for
people who are suffering intolerably.
That's why I think your bill will not meet the test of the court. It could be
challenged by a mature minor who will be able to answer the seven criteria. The
bill is not humane. It will establish a system under which, for an unlimited
period of time, people will be waiting for what Parliament will decide one day.
I can't accept your arguments, I humbly submit to you.
Ms. Philpott: Thank you for your comments. I'm pleased to hear your
perspectives on this.
I want to underscore to all of you, and I hope you will accept this, that
this piece of legislation marks a monumental change for us as a society. I don't
think we should underestimate how big a change this is.
This decision was made, as you say, for the reason that we needed to respond
to a Supreme Court decision. That Supreme Court decision was made to respect the
rights of those individuals to be able to choose the end of their life, to be
able to be put out of their suffering. We absolutely and fundamentally affirm
the autonomy of individuals and their right to be able to receive this care.
That is why we have responded to the court decision under a very short timeline.
The Government of Canada has other principles that it needs to uphold at the
same time. The solemn responsibility that all of us undertake when we are here
representing Canadians is that we are also asked to protect life. We are also
asked to recognize that there are vulnerable people who may potentially be
inadvertently harmed by legislation.
That solemn responsibility that we undertook made us look at those particular
conditions and say, yes, there are many people who would like us to go further.
Having said that, I don't think one can argue that on any of these issues there
is a broad-based international consensus as to how one can adequately protect
vulnerable people on any of those issues. You may disagree with me on that, but
in drafting the legislation, it was our understanding that we needed to be sure
that we had adequate safeguards in place that would protect vulnerable people.
The piece of legislation that we landed with is something that I believe is
the right approach for us as Canadians. I believe that it allows us to respect
that personal autonomy but to be sure that we thoughtfully consider the
ramifications and make sure that no vulnerable person's life will come to an end
without adequate protection.
Senator Plett: I'm going to ask a question that I asked your colleague
the Minister of Justice earlier. I'll ask two questions. I'll ask them
immediately so I can get both in.
Nurse practitioners who are independent of one another can assess whether a
patient meets the criteria and can ultimately administer the lethal substance,
and yet nurse practitioners are unable to prescribe narcotics in certain parts
of our country. So if I'm in the hospital excruciating pain and I want a nurse
to prescribe morphine to me for my pain, she's not allowed to. But then I change
my mind and I say, "If you can't give me morphine, then kill me.'' She's allowed
to do that. I can't square that box that she can't give me a painkiller, but she
can kill me.
I would like you to answer that, and please don't give me the answer that
your colleague gave me that we'll leave this up to the provinces. This is
federal legislation that we have here.
The other question I have — and I am at least in part in agreement with
Senator Joyal that we have a problem here with the mature minors, but I take the
opposite approach that he does. I understand the department is undertaking
studies in a number of areas, one of which would explore the possibility of
extending this right to mature minors. So here we are considering allowing a
person who can't buy a bottle of beer or who can't vote or who can't go to war
for me, but they can choose to have somebody help them die. We would have had 11
deaths in Attawapiskat a few months ago had that part of this bill been in
Can you assure me, minister, that the government will make sure that doctors
are not allowed to take the lives of children and that people who can't
administer a painkiller to me will not allowed to help me take my life?
Ms. Philpott: Thank you for your very important questions.
On the matter of nurses, perhaps I can clarify for you that it varies
somewhat with provincial regulations, but in fact nurses can prescribe
painkillers under directives. There is a concept that happens in the practice of
medicine where there is a certain scope of practice that nurses, nurse
practitioners and other health care providers can work in under ordinary
Senator Plett: In all jurisdictions?
Ms. Philpott: I can get clarification from my officials, but as far as
I know, each jurisdiction will lay out for itself, province by province, the
regulations under which nurses function in a province. There are colleges that
itemize that, the same as there are scopes of practice that are itemized for
Nurses may also respond to directives from a physician. So I may have a nurse
who doesn't, for instance, have within her normal scope of practice to do a
urinalysis, but I, as a doctor, could say to my nurse, "I give you a directive
that if a patient walks in here, even though they don't see me and I think they
have a bladder infection, you can do a urinalysis.''
Your argument was how can this nurse help to assist in dying when he or she
may not be able to prescribe painkillers? I'm telling you that that nurse, under
directives, could potentially provide a painkiller. Hopefully that responds to
that specific argument.
Senator Plett: It responds to it, but it doesn't answer it; I'm sorry.
She can do it under directive in one area and in another she can do it on her
Ms. Philpott: Let me respond to your second question. I think your
second question beautifully illustrates the diversity of opinion on some of
these challenging issues. I hear you. I hear your anxieties around the matter of
mature minors and the matter, in the case of Attawapiskat, not of mature minors
but of people suffering from mental illness. Those are some of the very reasons
why we wanted to be very sure that those particular matters had more study,
again, for the matter of protecting the vulnerable.
Having said that, I will tell you that there are, as you can tell from your
colleagues around the table, people that would say to you that if a 17-year-old
is dying from cancer and is suffering intolerable pain, what's the difference
between a 17-year-old and an 18-year-old?
I think this is a conversation where we need to be fundamentally open to
understanding the perspectives of people that think very differently. We need to
acknowledge that none of these answers are easy. That's the very reason why, on
these very delicate matters, we've decided that we don't have enough information
to make an adequate decision. We believe this bill needs to be passed through
the appropriate stages by the June 6 deadline that the Supreme Court has given
to us. I think it would be a very serious problem for us, as a country, if there
is not a legislative framework in place by that time. So what we have decided to
do on those matters where you can see the obvious challenges is say let's study
those more; let's make sure we make the right decisions.
Senator Batters: With respect to the example you just gave to Senator
Plett regarding a 17-year-old suffering from terminal cancer, there is no
terminal illness requirement in your government's bill, minister. I would point
that out to you to start.
I want to focus on the issue of psychological suffering. You practised as a
family practitioner for many years. You would have seen, then, in all the time
that you practised, that psychological illness, while very serious — I don't
deny that — is treatable, not terminal, and that there is more complex decision
Given that, you indicated in your opening remarks to the House of Commons
committee — and you made very similar, perhaps the same remarks, to us today —
that the proposed legislation also does not permit eligibility solely on the
basis of suffering from mental illness; that there is no denying that mental
illness can cause profound suffering; and that illnesses such as chronic
depression, cognitive disorders and schizophrenia raise particular concerns with
respect to informed decision making.
Given that, I'm wondering why you didn't include additional safeguards for
people who are suffering psychologically. It is included in your bill. The only
place that it is indicated that it's not eligible for assisted suicide on its
own is in the preamble, but you don't require a psychiatric assessment; you
don't require a more significant wait period. I understand the Mental Health
Commission of Canada suggested a three-month wait period. Here you have a
maximum of two weeks. And you would allow two nurse practitioners, not even one
doctor, to provide the approval, assess somebody's competency and administer it.
Ms. Philpott: Thank you for the question. It's Mental Health Week, so
a good time for us to be talking about mental illness.
You pointed to one of the reasons why it would be challenging, and that's the
matter that I raised in my speaking remarks in terms of the capacity to give
informed consent as one of the challenges there. But in terms of how we protect
people who are suffering from mental illness alone, as opposed to a physical
illness, which is the reason for their request, I think you will find that the
best way that is protected in this legislation is in the section that defines
"grievous and irremediable medical condition'' and speaks to the fact that
"natural death has become reasonably foreseeable.''
For people who are suffering from schizophrenia, depression, anxiety, et
cetera, natural death is not a reasonable foreseeable outcome. As you've said,
those are not incurable conditions in large part and there are treatments
available for those. It was the assessment of our team as we gave instructions
for drafting the bill that the matter of reasonable foreseeability of death
would exclude people suffering from mental illness alone.
Senator Batters: As your colleague indicated a little earlier,
everybody's death is reasonably foreseeable, to some extent. I want to just
focus on the particular aspect of somebody who is suffering with a very serious
physical illness and also has a mental illness. Why didn't you include
additional safeguards for those types of people to make sure that they are
properly consenting to this? As you've acknowledged, there is more complex
decision making involved for those people. Why is there nothing additional
rather than simply getting all of these approvals and assessments of competency
from two nurse practitioners?
Ms. Philpott: That matter is covered in terms of the requirement that
a person must give informed consent. The matter of informed consent is something
that health care practitioners are quite comfortable with. In fact, every
decision made in the process of shared decision making requires that a person
have the capacity to give consent. We recognize that there will be people
suffering from medical conditions, and it will be the medical condition for
which they would ask for assistance in dying. But if they have, for instance, a
psychosis and were out of touch with reality on that basis, they would not be
deemed capable of receiving informed consent.
Senator Boisvenu: Good afternoon, minister, and welcome. As I said to
your colleague a few minutes ago, we are examining a bill which aims to manage a
very complicated and complex situation. Everyone is trying in good faith to make
this the best possible bill. The bill imposes many restrictions, or at least
many guidelines, on health care professionals and the physicians who will have
to manage the process of putting an end to the life of an individual, either a
patient or another person.
In Quebec, professional misconduct is generally handled by the College of
Physicians rather than the justice system, unless a criminal act has been
committed. There is a clause in this bill that surprised me. Section 241.2 was
added to the Criminal Code so as to oblige a physician who prescribes a
substance to put an end to a person's life to inform the pharmacist of the use
made of the substance. I am trying to understand why this point was included in
the bill so as to amend the Criminal Code; it forces a professional who deals
with another professional to provide a reason for the use of a substance.
Ms. Philpott: You are wondering why there is a requirement.
Senator Boisvenu: Why is there an obligation for the physician to
inform the pharmacist that the substance he is prescribing will be used to end a
Ms. Philpott: Part of this speaks to the monitoring that is necessary.
I don't know whether you're going to be hearing from the Canadian Pharmacists
Association, but there has been a strong request from them to make sure there is
good interaction between the health care provider and the pharmacist so they
understand the purpose for which the medication is being given.
Most of these medications, as you may not be aware, are generally used for
other conditions. It's important for the pharmacist to understand the
circumstances that they're being used for, what we would call an "off-label''
purpose. It's important that the pharmacist be aware of why the medication was
Senator Boisvenu: If the physician does not inform the pharmacist,
will the Criminal Code be invoked, or will the College of Physicians be advised?
Will this be considered professional misconduct, or a criminal offence?
Ms. Philpott: I may need to double-check with my officials to clarify
that. My understanding is that it would be a regulatory matter as opposed to a
It would be considered a regulatory infraction, is the consensus of the team
The Chair: Minister, how much time can you spend with the committee?
Ms. Philpott: I have probably 10 more minutes. I must say you have
very good questions. You're stretching me.
Senator Lankin: Thank you, minister, for coming here.
I completely appreciate the delicate and sensitive balancing act that we must
all consider as we go forward with this. You've heard a few references to the
fact that I've raised issues and concerns around the lack of ability to give
advance directives. I'm going to come back to this discussion with you.
Just like there's a variety of scopes of practice for different health care
professionals across the country and different palliative care regimes and
medically necessary services access, there are also different capacity and
consent-to- treatment regimes, including age of consent — I have the scars from
bringing in that legislation in Ontario — and substitute decision making; so a
whole range of these things.
We have worked through on a provincial basis in many places some of these
difficult issues. While I recognize that at a national level this brings an
acute focus to it, it is not far from the issues that we have dealt with already
in terms of health care policy.
There are two scenarios. Please help me understand why one is more difficult
for this bill to understand than another and why this would bring about advance
In the situation where someone has lost the capacity to make a decision but
has given an advance directive and/or a substitute decision maker offers an
opinion without an advance directive, there are everyday situations where
substances are withheld and disconnected, like saline hydration drips. This
legislation is about administering a substance; that situation is taking away a
Another situation is two patients suffering from progressive MS. They both
have terrible mobility incapacities and are in excruciating pain. One of them
also develops cognitive impairment and the other doesn't. One can seek a
peaceful passing, and the other will not be able to give an advance directive to
do so when it gets to that point.
I don't understand, given that we've been through many years of debate about
these regimes and putting them in place, why all the same arguments are being
raised. What makes the flip side of this so difficult for us to move forward and
to educate people about how to deal with patients and families and provide
people with the same access?
Ms. Philpott: Well, you've certainly raised good examples of the
nuance and the challenge. You've also itemized the reality of the fact that
there is a difference between withholding treatment versus administering
treatment, and that's in large part where the fundamental difference lies.
Just to reiterate, we looked at international examples of this. If you look
with an open mind to the jurisdictions where advance directives have been in
place, it's safe and fair to say that they've had mixed reviews in terms of the
challenges instituted with them.
The most common challenge you hear is the fact that it's extremely difficult
when it comes to a later date and the person has written the directive and they
say, "When I get to the point that I can't eat, can't feed myself and no longer
know the date and time, I want you to end their life.'' It's a huge burden on
the health care provider who sees that person down the road and says, "This
person meets the criteria where they said they wanted to end their life
peacefully and they don't look uncomfortable, and I have no way to reaffirm with
them that's what they, in their current state, actually wish at this point in
Senator Lankin: It would still have to meet the other criteria.
Ms. Philpott: The other thing I would say is that by putting those
committees in place to further examine these issues, we are putting those
committees in place with no predetermined outcome as to what the decision would
be. But at this time, between now and June 6, we do not have enough information
to make that decision fairly, and we're committed to looking at those issues.
If you want to get in touch with me later, I would love to hear from you.
Senator Duffy: Minister, I will make this quick because I know you are
on a tight time schedule.
I represent Prince Edward Island, and the women in P.E.I. have for some time
had concerns about access to full medical services for women. That has recently
changed, and that's a good thing.
Picking up on what Senator Cowan said, have you thought about what mechanisms
the federal government might have — i.e. the Canada Health Act, cash, money — to
ensure that this service you're proposing will be available everywhere in
Ms. Philpott: Thank you. That's an excellent question. The P.E.I.
example in terms of abortion is a very appropriate example in this case.
I think you're aware that the biggest mechanism we have is the fact that the
Canada Health Act requires the upholding of a number of principles, including
accessibility. The Canada Health Transfer, as you are also aware, is dependent
upon assuming that provinces and territories uphold the Canada Health Act and
all of its provisions.
Senator Duffy: That would apply in this case?
Ms. Philpott: That would apply in this case.
The Chair: Thank you, minister. We appreciate you staying a little
Ms. Philpott: It has been a pleasure to be with you all. Thank you for
your consideration of the legislation. I look forward to any further questions.
The Chair: The Minster of Justice has returned. Welcome back, Minister
Wilson-Raybould. We will begin with the second round list of questioners I had
earlier before you had to leave. We will begin with Senator Eaton.
Senator Eaton: Thank you, Mr. Chair.
I'm thrilled you're putting $3 million towards palliative care, because I
think that will help a lot of people. I hope a lot will go into training, as
it's a real expertise. Can you reassure me, minister, that provincial
regulations will not force health care practitioners to administer assisted
Ms. Wilson-Raybould: I appreciate and I imagine that there was some
conversation around palliative care with Minister Philpott.
One of the things in terms of the discussions that we've had far and wide
across the country in the context of medical assistance in dying is the
fundamental need to ensure that we have comprehensive palliative care that's
available to everyone. That's a discussion that will continue to take place.
There is nothing in our legislation that would compel a medical practitioner
to perform medical assistance in dying. The jurisdiction would be within the
provinces and territories.
Senator Eaton: Can you explain that to me? In other words, Ontario
can't look at your legislation and say, "We're going to make a difference
because we're going to force people in hospitals to practice it if they do not
Ms. Wilson-Raybould: This is a discussion that Quebec has already had
and Ontario is having. This is something that Minister Philpott is working on
closely with her counterparts in the provinces and territories. In terms of the
conscience rights of medical practitioners, that is in the jurisdiction of the
provinces and territories. I know a number of provinces have started, including
Ontario, to engage in this discussion to not compel medical practitioners to
perform medical assistance in dying. I don't know if the deputy has any more
detailed information about what's happening within the provinces and
territories, but I hope that answers your question.
Senator Eaton: It does. What you're saying is it does not compel
Ontario. Ontario could still turn around tomorrow and force people to administer
death and dying if they so choose, if that's what the province decided,
regardless of what you've written in your legislation?
Ms. Wilson-Raybould: Well, the provinces and territories have the
ability to put in the regulatory framework that they deem appropriate. Having
said that, the regulatory framework put in place must be Charter-compliant.
Senator White: Thanks for returning, minister.
I'm sure you've spent time looking at the Quebec legislation. They've done
more research than all provinces combined on this area. In comparing the two,
was there no a consideration to looking at adopting their legislation, or if not
directly what they have, as close as possible? They certainly have some pieces
that were missing around the terminally ill and things like that.
Ms. Wilson-Raybould: As I said in my opening remarks, we had the
benefit of looking at all jurisdictions that have medical assistance in dying —
some nine jurisdictions — and we certainly did look closely at what the Province
of Quebec has done. Their discussions and debates occurred over a substantive
number of years. The debates around their legislation took place prior to the
Carter decision. Of course, we were mindful of best practices and experience
in other jurisdictions but sought to specifically respond to the factual
circumstances in the Carter decision in drafting our legislation. There
are similarities, I think it's fair to say, but there are some differences.
Senator White: Do you think the Quebec legislation meets the Carter
Ms. Wilson-Raybould: I have had the opportunity to speak on an ongoing
basis with the Attorney General in the province of Quebec, and she indicated
that they, like all jurisdictions, will be considering the legislation very
Senator White: So that means no?
The Chair: Senator Jaffer.
Senator Jaffer: All afternoon, as I've been listening to you,
minister, and to Minister Philpott, one of the concerns I have had is with
regard to areas of the country where there is very little medical help. You
would know this very well, of course, because of the work you've done previously
on reserves and in the North. How are we going to ensure that the same kind of
accessibility exists for vulnerable people in those areas? For example, I
understand that some places don't even have a medical practitioner or nurse
practitioner. Are you making any special provisions for people in those
Ms. Wilson-Raybould: Thank you for the question.
I would imagine that my colleague Minister Philpott addressed her substantive
mandate letter in terms of engaging with the provinces and territories in the
renewal of the health accord and ensuring that all Canadians have the same
access to health care programs and services.
You referenced vulnerable people who live in remote areas. There are specific
concerns, certainly, with respect to indigenous communities. There are many
measures that our government is looking at and undertaking to invest in
indigenous communities in our 2016 Budget. One is ensuring that we work closely,
in a substantive way, with communities to ensure that we can provide the
services required to address some of the root causes that create gaps in the
first place. Those include poverty, housing and ensuring that we do as much as
we can to provide those necessary circumstances to individuals.
Senator Jaffer: All afternoon we've been hearing the term "reasonably
foreseeable.'' From what I'm gathering, based on what I've heard, it's based on
flexibility. How do you ensure consistency across the country? There's no
definition of "foreseeability.'' How are we going to achieve consistency across
Ms. Wilson-Raybould: That's a great question. We, as I indicated,
purposefully drafted our eligibility criteria, including the four elements
around "grievous and irremediable,'' and concluded that death has become
When the four elements are considered in the totality of the circumstances of
the individual patient, we saw fit to not put a specific timeline around what
reasonably foreseeable is, but to put in place the confidence or the ability of
medical practitioners to make that determination for themselves based upon the
relationship they have with the patient, their expertise and recognizing that we
live in an incredibly diverse country. Patients present themselves with
incredibly diverse circumstances, so it's that flexibility that we thought would
be best placed in terms of medical practitioners making that determination based
on what their patient presents.
The Chair: Senator Plett.
Senator Plett: I asked my questions of the officials before.
Unfortunately, I didn't get a very good answer, but I'll accept what they gave
me and pass it on.
Senator Joyal: I'm not in the same position as Senator Plett. Thank
Madam Minister, I'd like to come back to the last "Whereas'' of the bill,
especially the last part, wherein you state that you intend to:
. . . explore other situations . . . in which a person may seek access to
medical assistance in dying, namely situations giving rise to requests by
mature minors, advance requests and requests where mental illness is the
sole underlying medical condition;
You recognize in this preamble that there are at least three other groups of
people who should have access to physician-assisted dying. That's what you infer
by stating their classes very specifically. In so doing, what you recognize is
that those people — everyone in those classes — could have a right to access
physician-assisted dying under section 7.
In my opinion, by not putting any deadline on recognizing their rights, you
are open to challenges under section 15 of the Charter. We heard that argument
from Professor Benoît Pelletier, from the External Panel for Options for a
Legislative Response, which was established by the previous government and
published its report last December. Professor Pelletier is on the record
specifically on this issue.
Would it not have been safer for the survival of the bill, under a challenge
on this section of the preamble, to put in place a deadline as the special joint
committee did in its Recommendation 6 of the report? We were very conscious that
we were excluding people in order to survive a challenge on the basis that the
court has already recognized that right, and has already maintained the
exclusion for a limited period of time for a specific objective. By making it
open-ended, I think you're open to a challenge under section 15 of the
Charter from people who found themselves in that class.
Ms. Wilson-Raybould: Thank you for the question, senator. As I stated
and as we have explained in our explanatory paper we took into account
I will say that the Supreme Court of Canada decision in Carter did not
deal with mature minors, advance directives or with persons suffering from
mental illness alone as a sole eligibility criteria to seek medical assistance
What we have heard, very loudly and from many diverse perspectives, is that
these are more challenging issues that need to be considered in a substantive
way to get more evidence of the risks and benefits with respect to these three
more controversial issues. We put it in the preamble as a reflection to indicate
that we are going to be engaged in further study on these three issues. It was
not put there to presuppose an answer that, ultimately, medical assistance in
dying would be made available in these three particular categories, but to
ensure that our commitment is strong and that we need to have further
discussions around this.
I want to be very clear that the conclusion of those discussions has not been
predetermined, senator, but that the importance of these issues, and ensuring
that we respect personal autonomy and substantively protect the vulnerable as
much as we can, come into play when we have those discussions on those three
particular issues. That's what we're committed to doing.
Senator Joyal: The court, in paragraph 127, states:
We make no pronouncement on other situations where physician-assisted dying
might be sought.
The court was quite clear. There are other cases and situations where the
court will recognize that a patient has a right to physician-assisted dying,
especially if they fall into one of those three categories that you mentioned
and that everyone recognizes. That's why I think this very paragraph leaves you
vulnerable. You recognize it and the court has recognized it, but you don't
establish any specific deadline for those people to exercise their rights under
We all agree that those three categories might need additional safeguards to
the ones the bill contains. But by excluding them without any deadline, I think
you negate them in the future without any real commitment in time to recognize
those rights. The court infers that they might have the right to do it.
Senator Batters: With respect to the issue of terminal illness or end
of life, this is an issue that Canadians have spoken loudly and clearly on in
many different polling results on the external panel that were done with focus
groups. Quebec requires that. All U.S. jurisdictions that allow assisted suicide
require it. Why did your Liberal government choose not to require terminal
illness and end of life?
Ms. Wilson-Raybould: The object of our legislation is to ensure that
we respond, of course, to the Carter decision and provide medical
assistance in dying to those individuals that meet the eligibility criteria, all
four of the elements that are contained in terms of "grievous and
irremediable.'' This is to provide the ability for patients that meet those
criteria to have a peaceful passage into death.
Our legislation, while somewhat different from other jurisdictions, six of
the nine jurisdictions look to and their legislation focuses on end of life. We
have put in place "reasonably foreseeable'' other conditions that need to be
taken into account by the medical practitioners in their totality.
There's a degree of flexibility in terms of what "reasonably foreseeable''
means, but we made a conscious decision to ensure that we provide legislation
and a regime that enables persons who are approaching the end of their lives to
make decisions about the ability to have dignity and have that peaceful passage
Senator Batters: Very briefly on the issue of nurse practitioners, you
indicated earlier that for your government this was an issue of access. That's
why you, unlike almost everywhere, are going to allow nurse practitioners to
approve a patient, allowing this, assess competency and administer it. You also
said that this would be required in more remote areas, but your legislation
provides no limitations on that, so this could be accessed anywhere in Canada.
It could be downtown Toronto.
There aren't any limitations, and I wondered if that was the reason, to
promote access in these specific rural or remote areas, why did you do that?
Where did you get the basis of nurse practitioners? You mentioned Colombia
earlier. Is that where you obtained an unusual requirement like this?
Ms. Wilson-Raybould: You're quite right, senator. The reality of the
different areas of our country is that some individuals do not have access to
physicians. We certainly recognize that the regulation of nurse practitioners
and laws around nurse practitioners being able to provide medical assistance in
dying is within the jurisdiction of the provinces and territories and they can
legislate in that regard.
I will say that we had the opportunity to meet with the Canadian Nurses
Association and have a deep appreciation for the substantive work that nurse
practitioners do and the ability to engage and have substantive relationships
with individuals in communities. We recognize for access reasons and the
substantive regulatory requirements for that profession that would need to be in
place, depending on what the provinces and territories indicate, that they
should be in place. That's their decision with respect to nurse practitioners
being able to provide medical assistance in dying in those regions.
Senator Batters: Do you mean that some provinces could allow nurse
practitioners to do this and others could say no, nurse practitioners cannot do
it, even though it's in your bill that it can be either doctors or nurse
Ms. Wilson-Raybould: That's correct. It's up to the provinces and
territories to determine if nurse practitioners will be able to provide medical
assistance in dying.
Senator Boisvenu: Madam Minister, this bill, once it is passed, will
no doubt apply to citizens for whom we have a great deal of respect. I am
thinking of members of the military and veterans who often come back from their
missions with very serious injuries.
Can you explain why the bill amends the Pension Act and the Canadian Forces
Members and Veterans Re- establishment and Compensation Act? Please explain how
the bill will change those acts.
Mr. Pentney: As you know, there are groups that fall under federal
jurisdiction, such as veterans, and we do not wish to limit access to medical
assistance in dying to other Canadians. The changes to legislation affecting
veterans and pensions, for instance, are related to that aspect. We do not want
to limit access to other Canadians. We have to change the system so that the
families of veterans will not be —
I have to say it in English, I'm sorry. They're not disadvantaged by virtue
of the veteran having had access to a medical aid that's available to other
Canadians. It's really a consequential amendment.
The provinces and territories will have to look at other laws that they may
consider changing as consequential amendments to ensure that surviving family
members and others aren't disadvantaged by virtue of, if the law passes, the
individual having taken advantage of something that the law makes legal.
Senator Boisvenu: Will the provinces have to go through the same
exercise with regard to other professions, such as police officers, for
Mr. Pentney: Yes, certain other situations have to be considered. We
are unique in the sense that we are managing a medical system for a population.
I'm not aware of any province that runs a policemen's medical system. Police
have access to a general system, but for federal inmates and for certain federal
populations, including veterans, as you know, in that sense we have a parallel
Senator Sinclair: My question has to do with the consequences of doing
nothing, the consequences, I suppose, of this bill not passing or not passing by
As I read the legislation that has been pronounced by the Supreme Court, it
has in effect created a law in its decision that you are trying to change
through this bill. By virtue of paragraph 147 — and correct me if I'm wrong, and
I invite you to respond — the Supreme Court has declared that any physician who
assists a person to die will not be guilty of an offence or be subject to
prosecution provided that it is "a competent adult person who (1) clearly gives
consent to the termination of life and (2) who has a grievous and irremediable
medical condition'' — and "irremediable'' is defined as impossible to cure, as I
have read that word — "that causes enduring suffering that is intolerable to the
individual in the circumstances of his or her condition.''
So the Carter decision seems to me to say that if those conditions
apply, a physician cannot be prosecuted for assisting that person to die, in the
absence of this or any other legislation. Am I right?
Mr. Pentney: Yes.
Senator Sinclair: Thank you.
The Chair: Minister, if you can take one more question quickly. Do you
want to respond to that?
Ms. Wilson-Raybould: Can I speak to that and potentially speak to the
other question posed by Senator Joyal?
The Chair: Go ahead.
Ms. Wilson-Raybould: You're quite right, senator, and it's very nice
to see you around this table.
You're quite right in your interpretation. The Carter decision will
apply if for some reason there is no federal legislation in place as of June 6.
There is substantive concern, however, that there will be uncertainty in terms
of medical practitioners and the application of what the Carter decision
actually means. There will also be uncertainty of the ability of patients to
access medical assistance in dying because of that uncertainty.
There will be the uncertainty for the medical practitioners in applying but
also uncertainty with respect to safeguards that would be in place. There would
be no safeguards in place after June 6. The applications for exemptions, which
individuals are allowed to apply for right now to a Superior Court in their
jurisdiction, would no longer be in place.
If I could speak briefly to Senator Joyal's comments with respect to the
constitutionality of this legislation, I'm very pleased that we were able to put
out our explanatory paper. It spoke to the Charter considerations with respect
to this piece of legislation. While we have spoken to the Charter
considerations, considerations do not necessarily mean that our piece of
legislation is unconstitutional. I am confident that our piece of legislation
meets the Carter decision and I am confident that it would withstand
constitutional rigour because we performing our responsibility as
parliamentarians to ensure we develop a complex regulatory framework for Canada
at this time. That's what we've done, taking into account the diversity of
opinions, and we sought to balance that fundamental need for balancing of
rights, personal autonomy, in this case, and protection of the vulnerable.
Senator Lankin: I have been focusing on the issue of advance
directives. From the perspective of the health care professionals, this
legislation creates an exemption to protect from criminal prosecution.
In a circumstance where a health professional is respecting a DNR advance
directive of a patient with brain cancer, let's assume they don't want heroic
interventions but want to be kept comfortable and pain free. Your colleague and
I talked about the difference between administering a substance and withdrawing
a substance in a DNR circumstance. If a physician provides morphine or
painkillers to depress respiration which leads to death — and this happens all
the time — can you assure me they would not be prosecuted because they're doing
that under the conditions of an advance directive?
Ms. Wilson-Raybould: In terms of what currently is being undertaken by
medical practitioners in terms of —
Senator Lankin: With the prohibition of giving an advance directive
for medically assisted dying. In circumstances that occur all the time right now
under advance directives, would that health care professional now be at risk of
being prosecuted because they're acting under an advance directive, which is
prohibited by the legislation and the exemption to criminal prosecution?
Ms. Wilson-Raybould: As you know probably better than I, this occurs
in hospitals and with patients right across the country. I would imagine that no
more now, with legislation introduced on medical assistance in dying, would the
doctor be at more risk than not.
We're going to, as you know, study advance directives and have some
consideration around these issues in terms of do-not-resuscitate orders or in
situations of palliative sedation that you speak about; that is, accommodating a
patient in terms of the end of their life or making the best situation in that
regard. What we need to discuss and study further is actually making and
initiating the end of life by virtue of medical assistance in dying in terms of
the advance directives.
It's an incredibly difficult issue. You've acknowledged the personal
experiences you and many other Canadians have had. We hear these discussions
when we go to town halls. These are not easy issues. This is a transformative
shift in the discussions. We have benefited from those discussions. Canadians
are engaged and involved, and this is not going to be the end of the discussion,
so I look forward to the continuation.
The Chair: Thank you, minister. We very much appreciate your
attendance and response to senators' questions.
We have about one hour remaining, so we've asked officials from both Health
and Justice to come forward. You can pose questions to whichever ministry you
Senator Jaffer: Thank you very much for sitting so long and
I want to go to discuss third parties. I'm very interested. I understand it
can be medical practitioners, nurse practitioners and exemptions for persons
aiding practitioners. The bill says: "No person is a party. . . if they do
anything for the purpose of aiding a medical practitioner or nurse practitioner.
. . .'' I'm curious as to who you were thinking of in those circumstances.
Ms. Klineberg: Thank you, senator. It could be a variety of different
people who might play a role in assisting the medical practitioner or the nurse
practitioner in the various steps leading up to the provision of medical
assistance in dying. For instance, a social worker or a psychologist may be
asked to consult with the patient or their family to help determine if the
patient is making a voluntary choice, if they're being coerced by a family
member, for instance.
We had also considered the possibility that there might be a staff lawyer, at
a large hospital, who might be asked to review all of the paperwork in advance
of proceeding to determine that everything was in order.
Under a technical legal analysis, each one of those actions, when the party
knows that it's in furtherance of the provision of medical assistance in dying,
could render those people parties to what would otherwise be a homicide or the
offence of assisting a person to die by suicide. In large measure, I think what
was in mind were various other sorts of health care providers, but because it's
possible that there might be other types of professionals involved, the language
was made applicable to anyone. But they have to know they're helping a physician
or nurse practitioner to provide it in accordance with the legal regime.
Senator Jaffer: One the things that really concerns me in this bill is
informed consent. I have tried to find a way to describe it, but I haven't yet
I see two tracks. I see that one track is voluntary euthanasia, where, almost
at the very end, you have to be able to consent. Then there is assisted suicide,
where you go to your medical practitioner. You get the prescription. You go to
the pharmacist. You get the substance, and you put it in your fridge and wait
until you decide to end your life.
At that time, when you decide to end your life, there is no consent, right?
It's just whenever you're ready. Do I read this correctly?
Ms. Klineberg: In the sense that there's no medical practitioner or
nurse practitioner obtaining your consent again, yes.
Senator Jaffer: So your consent is at the time you get the
prescription, which could be two years before.
Ms. Klineberg: Yes.
Senator Jaffer: There are technical issues, like the prescription
running six months. So the informed consent could be two years before, and then
there is nothing else in place.
Ms. Klineberg: Yes. The primary reason for that has to do with the
limits of the criminal law.
From a health law perspective, we would note that the provinces and the
territories might be able to place protocols or parameters around medical
assistance in dying when it occurs in the form of physician-assisted suicide.
They might be able to put in place protocols that require the person to
self-administer in the presence of someone as a matter of health law; but, as a
matter of criminal law, the private act of a person to take action to end their
own life is not something that the criminal law prohibits or gets involved in.
The criminal law is really interested in that situation when there's the
involvement of a third person. It's largely a function of the limits of the
I will just add a little context on this particular point. The
Provincial-Territorial Expert Advisory Group recommended that both modalities of
euthanasia and physician-assisted suicide or medically assisted suicide be made
available. They recommended that, in the case of medically assisted suicide, it
be made available, including in the unsupervised manner that the legislation
provides for. In their view, that really maximizes the autonomy of the
individual to be able to choose exactly when the time is right and to have the
comfort of knowing that the medication is present with them should their
circumstances change in some way.
I would also note that it's a model that's based on the U.S. state law
approach. Presently, four U.S. states permit only physician-assisted suicide,
and it's based on this model where the patient can obtain the substance and take
Those are additional considerations that might better help you understand
that particular approach.
Senator White: Thanks again for the responses.
I must have missed part of this, because a lot of things can happen in 24
months. The mental health of the patient is no longer relevant, really, if they
have it sitting in their fridge or cupboard like a loaded gun. New treatments
might have come forward. There are no checks or balances in place to ensure us
that things that might have changed are actually looked at. Is that correct?
Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector,
Department of Justice Canada: Thank you, Senator White. Senator Jaffer's
reference to two years was a hypothetical.
In order to get the prescription filled, you have to meet all the criteria.
You must, first, have an incurable disease. You have to be suffering
intolerably. The doctor has to have made a diagnosis that your medical condition
and all the circumstances have changed and that death is "reasonably
foreseeable.'' So you cannot get a prescription in advance for two years or five
years from now. You cannot get a prescription to do an advance directive.
You have to be qualified. In other words, to get the prescription you have to
qualify for the doctor to actually inject you, but instead of injecting you, you
decide that you would rather die in bed at home with your family around you
instead of at the hospital, or "I'd like to go up to the cottage and die at the
cottage, because that's really peaceful.'' The doctor is not going to go two
hours up to the cottage to watch you die.
That's why. It provides greater autonomy if you give the patient the ability
to take the medication on their own terms, at their time, so it's a peaceful
death. As the minister said, we're giving Canadians the right to a peaceful
death when they're in the process of dying. So the person has to be in the
process or on the path of dying already. You can't get it in advance of meeting
Senator Joyal: I would like to come back to proposed paragraph
241.2(2)(d), the one that provides the new criteria:
(d) their natural death has become reasonably foreseeable, taking
into account all of their medical circumstances, without a prognosis
necessarily having been made as to the specific length of time that they
You are probably aware of the two cases reported by CBC in Quebec whereby a
person who was suffering from a disease — an irremediable condition — was denied
physician assistance in dying by the doctor, because the person was not too
close to death under the Quebec law. The person, in order to have access to
physician assistance in dying, had to go on a hunger strike and deprive herself
of all water to come to the point where the doctor came to the conclusion that
the person was dying under intolerable suffering. Of course, if you deprive
yourself of water, all the muscles contract and you suffer. So then the doctor
prescribed the drug for her.
The problem I have with this new paragraph is that it will perpetuate that
situation. It seems to me that it is totally inhumane and contrary to what the
court has decided in Carter under the right provided by section 7. So you
can't push people to put themselves into intolerable conditions in order to have
access to medical assistance in dying. That's certainly not what Carter
had in mind when the judgment was made public.
I hope we'll have the opportunity, as witnesses here — I have suggested the
names of the persons who are involved in that case in Quebec. It was widely
reported. There were two such cases.
So it seems to me that what you have put there — additional criteria — will
lead to horrendous situations, and that's been public and reported in all
It seems to me before we accept that criteria, we have to evaluate the impact
of it in relation to the practitioner who has to pronounce on the state of the
"dying path'' of the person, while, in fact, the main criterion is the
suffering. That's the main criterion of Carter.
By adding this, you will be confirming the kind of situation that I have just
described to you.
Simon Kennedy, Deputy Minister, Health Canada: Senator, perhaps I can
speak to the principles behind the way the bill was constructed, and then
Justice can speak to some of the legal issues.
The ministers here and before the House of Commons earlier in the week noted
that in pulling together the legislation, three different approaches could be
taken. One would be to have an arbitrary length of time during which death was
seen to be something that would happen. They have this in some U.S. states,
where they say you have to have a prognosis that you will be dead within six
months. The concern was that there is a great deal of evidence that it's very
hard to make those kinds of determinations. If you do, to some extent it's
arbitrary because you will have people who will live slightly longer and who
might not otherwise be eligible. So that was one door.
Another door would be to not have this notion of death being "reasonably
foreseeable,'' so you'd have something that is much broader than what is in the
current bill. The ministers noted that the concern there is that it really
brings into sharp focus all of the safeguard concerns for the vulnerable — that
you have a heightened concern around vulnerable people if you don't have this
criterion that death is "reasonably foreseeable'' in the circumstances.
The government has tried here to reconcile the competing interests, which is
to recognize the concerns you have raised about people who are in terrible pain
and suffering, but also the concerns around protecting vulnerable populations
from exposure to early death, who might not wish that or who might be in
situations where they might be coerced.
You see in the legislation an attempt to reconcile those, where death has to
be reasonably foreseeable but the circumstances of the case are left to a
medical professional to make that judgment. So looking at the totality of the
circumstances and knowing that death is a reasonable and foreseeable outcome,
it's really left to the medical professional to make the judgment. That was a
very deliberate choice.
This is not really a piece of legislation designed so that people who are in
terrible pain can make a decision to end their lives. This is a bill about
people who are actually in that circumstance but on a path toward death, so that
they can have a peaceful exit. That was a deliberate policy choice that the
government made. I think Justice has determined that they believe this is
compliant with the Charter.
Maybe we could speak a bit more to the legality.
The Chair: You can expand on that in second round.
Senator Batters: Before the Minister of Health came, we were right in
the middle of Ms. Klineberg providing her answer to what Senator Jaffer and
Senator White touched upon in this particular portion.
Ms. Klineberg, when you were indicating that answer earlier, you were saying
the physician-assisted suicide section where someone potentially receives a
prescription two or three years before.
Mr. Piragoff, earlier you indicated that that was a hypothetical. But it was
a hypothetical that we posed at the briefing yesterday, and your official
indicated that was a valid hypothetical.
I guess what I'd pose to you is somebody in their household, or some
unscrupulous person, unfortunately, may be potentially influencing that person
or even doing something worse than that, and you'd never know because there
aren't any additional safeguards required in that circumstance.
Earlier, when you were responding to one of my colleagues here, Ms.
Klineberg, you referred to U.S. state law for these sorts of things. But, of
course, U.S. state law does require terminal illness in those few jurisdictions
that have this, and also end of life. It probably wouldn't be a situation of
that lengthy of a time frame. I'm wondering if you could provide a little more
information than you provided earlier, Ms. Klineberg.
Ms. Klineberg: I agree with the comments of Mr. Piragoff. Just to
clarify, before the prescription is provided, all of the eligibility
requirements must be met. So this is a person who has been found by two health
care practitioners who are qualified to make the determination that they are on
a path towards the end of their lives. How long that might take, these are
hypothetical questions that we're not in a position to answer.
In terms of unscrupulous individuals pressuring or taking advantage of a
person in those situations, there absolutely remain criminal prohibitions which
are very serious in nature which would prohibit that sort of conduct. Any person
who counsels or influences or tries to encourage or incite a person to take the
drugs themselves would be committing an offence, for which no exemption is
provided. That offence is punishable by 14 years in prison. Any person who takes
the drugs and somehow attempts to administer them directly to the person would
be in fact causally responsible for their death and could be charged for
culpable homicide, specifically murder. That's what the criminal law can do. The
criminal law can prohibit these forms of conduct.
Senator Batters: I agree with that. It's just that hopefully in this
regime we would know about those sorts of things.
Mr. Pentney, when you earlier appeared with the Minister of Justice, you both
indicated that Canadian provinces could disallow nurse practitioners from
providing assisted suicide, despite the fact that your bill provides either
doctors or nurse practitioners. I wonder if you could point to me which
provision of the bill provides that. Having a quick look myself after you gave
that answer, I'm wondering if you're just referring to the definition of "nurse
Mr. Pentney: That's exactly the definition. It means a registered
nurse who, under the laws of a province —
Senator Batters: Is entitled to practise as a nurse practitioner. It
doesn't limit it.
Mr. Pentney: At page 7, subsection (7):
Medical assistance in dying must be provided with reasonable knowledge,
care and skill and in accordance with any applicable provincial laws, rules
Senator Batters: Those are the only two parts?
Mr. Pentney: Yes.
Senator Batters: In a lot of ways, it seems this particular bill is
putting things off on the provinces or regulatory bodies to take significant
steps, and we could have quite a patchwork of situations across the country. Are
you concerned about that?
Mr. Pentney: As the ministers have made clear, the government's
intention by exercising the criminal law power, which is a federal power and
applies from coast to coast to coast, is to establish a baseline or a floor. But
recognizing that Canada is unique in the world as a federal state where we are
exercising a criminal law power in respect of a medical procedure where, as the
Supreme Court of Canada has recognized in a series of decisions, it is an area
of federal and provincial jurisdiction, the government's commitment is to try to
ensure a degree of uniformity that recognizes that the different provinces and
territories have a role to play with respect to the regulation of medical
practitioners and the professional conduct, expectations, standards, norms and
We've seen a number of provinces starting to exercise that jurisdiction.
Quebec led the way. Other jurisdictions are now out with guidelines, some
courts, with respect to this interim period of exercise guidelines. The
government would seek to ensure a degree of uniformity, and we are working
actively with provincial and territorial officials to implement this.
But the Supreme Court of Canada has also made clear that in respect of the
federal power, there are limits. The assisted human reproduction decision from
the Supreme Court of Canada clearly prescribed limits on how far the federal
government can go in prescribing especially professional practice.
We are unique in the world in trying to work this through, but the
government's commitment is to try to achieve a reasonable degree of uniformity,
recognizing that different provinces now treat nurse practitioners somewhat
differently and have some differences. Those things will continue.
Senator McIntyre: I have two questions, one for Justice and one for
The question for Justice has to do with the relationship between the Quebec
law versus the proposed legislation. The proposed legislation calls for both
assisted suicide and voluntary euthanasia. Quebec's health law permits only
legal euthanasia. Then we have a mixture of terms. Quebec uses "end of life''
and the proposed legislation uses the words "reasonably foreseeable.''
Can both laws coexist, assuming the proposed legislation becomes law, or will
Quebec have to amend its legislation in order to meet the federal standards?
Mr. Pentney: We are working very closely with provincial and
territorial officials to look at, if the federal law passes, the steps they may
wish to take, including with Quebec.
You're correct to note that there are differences between the federal and
provincial law. But, if you like, there's a general prohibition. This bill
proposes to open up a box underneath that general criminal law prohibition and
say that within that box, the activity will be legal if it corresponds to the
What Quebec has done is to partially fill that box. The federal law would not
require them to fill it.
The Carter decision opens up a new set of questions. Quebec, I'm sure,
is looking carefully at the Carter decision and its implications for
their law, either under the federal or the Quebec charter. But it would be for
Quebec to decide, and we are in active discussions with them about the ways in
which these laws will align and those discussions will carry on.
Another province could decide to only partially occupy the box in terms of
the scope of medical practice that they allow. That's effectively what Quebec
Senator McIntyre: The Carter decision seemed to reassure Quebec
as far as their legislation is concerned.
Mr. Pentney: I would leave it to the Quebec legislature and Quebec
officials to describe that.
Senator McIntyre: My next question has to do with health, particularly
for individuals with mental health issues. The bill does not permit medical aid
in dying for individuals with psychiatric conditions, yet psychological
suffering would meet the test for eligibility. What I hear is that people with a
mental illness would be eligible for medical assistance in dying as long as they
have met all of the eligibility criteria. I find this a little confusing between
people suffering from psychiatric conditions as opposed to people suffering from
psychological conditions. People with psychiatric conditions are out of the
picture, yet people with psychological conditions would fit in as long as they
meet all the other criteria. Could you clarify that for me, please?
Mr. Kennedy: I think the legislation talks about suffering, and
suffering as a result of medical circumstances. Psychological suffering can be
part of the suffering that gets considered by the medical practitioner in making
the assessment, but it can't be the sole criterion. In other words — I think the
minister talked about this earlier — psychological suffering, mental illness,
cannot be the sole criterion. It can be one of the factors that are looked at in
As an example, you may have somebody who has some sort of illness. They have
a concurrent psychological issue — they're depressed or they have some kind of
psychological pain — but it's concurrent with another illness which is actually
quite serious and will perhaps lead to their death in a reasonably foreseeable
period of time. If you've satisfied all the conditions in the legislation, the
mere fact that you have this underlying psychological condition is not going to
exclude you. But if a psychological condition is the sole basis, that will not
be sufficient in the legislation to enable you to get access to medical
assistance in dying.
Senator McIntyre: Even if you have a mental illness, you're not
Mr. Kennedy: That is exactly right. The ministers have talked about
this a little bit. There is the issue of the ability to give consent. You have
to be able to freely indicate this is something you wish to have. You must
Senator McIntyre: You can have a mental illness, but as long as you
meet the other criteria, you're fine?
Mr. Kennedy: Exactly, senator.
Senator Plett: Mr. Piragoff, you talked about hypothetical situations
a little earlier. I've been looking at some of the clauses here about reasons.
There are situations where a pharmacist can simply give somebody a drug if it's
been prescribed by a physician. You stated, however, the doctor may not want to
go out of his way to drive two hours to a cottage. I think a person willing to
administer something to kill a person might be willing to drive two hours.
I want you to walk me through a situation where someone goes to a pharmacist,
purchases this drug, how long they can have that drug and what the process is of
that person administering the drug. You're pointing to Ms. Klineberg, and that's
fine. From start to finish, where does a person go?
I'm concerned that a doctor would allow someone with psychological suffering
to drive to a cottage to kill him or herself. There is a fear of who they might
kill on their way out to this cottage where they go to kill themselves. Can you
walk me through that process?
Ms. Klineberg: The process begins long before the person would arrive
at the pharmacy with the prescription. It begins with the person making a
written request after they've been informed by a medical practitioner or nurse
practitioner that their death has become reasonably foreseeable. They make a
written request in the presence of two independent witnesses. They're assessed
by a second medical practitioner or nurse practitioner. The two practitioners
determine that they meet all of the eligibility requirements. The person might
then obtain from the physician or nurse practitioner a prescription that would
then be filled by the pharmacist.
As I mentioned before, there are limits to how far the criminal law can go in
terms of regulating the private acts of an individual to end their own life, but
that doesn't mean there aren't steps that the provincial and territorial
governments or medical colleges might take to establish protocols around how
this might transpire.
Senator Plett: It keeps on getting passed off to the provinces and
territories when we are dealing with federal legislation. You're drafting a bill
here that we're supposed to pass. Everything I've been asking is somehow not the
federal government's responsibility; it's the province's responsibility.
You are telling me, though, that a person who has psychological suffering can
run around with a drug in his back pocket for two years and then decide to do
whatever he wants with that drug, and you trust someone with psychological
suffering with this drug?
Mr. Piragoff: If the doctor has concerns about the competency of the
individual, the doctor doesn't have to prescribe the drug. Nothing forces the
doctor to prescribe the drug.
Senator Plett: Except the person asking.
Mr. Piragoff: But it's the doctor's decision.
Mr. Pentney: What Ms. Klineberg walked through is the process and the
system, the individual meeting the eligibility criteria set out in the
legislation. There is illness, disability or disease causing suffering or
intolerable to the person, significant decline in capabilities where death has
become reasonably foreseeable. They make a written request, followed by two
medical physician witnesses and a 15-day reflection period. Beyond that, Quebec
says that the only way this can happen is the doctor must administer and remain
with the person until their death. That's what is said in the Quebec
Carter treated both the situation where the doctor is administering
and the other situation where the individual is administering as falling within
the possible constitutional requirements. What the legislation would allow,
then, is when a person got to that stage, if it's their wish, and they meet all
of the eligibility criteria, a physician may administer the drugs. The law is
opening up the possibility that the individual may then have possession of the
drugs and decide the circumstances under which they would take the drugs.
Having said that, these are highly prescribed drugs. Provinces and
territories already control access to and use of those drugs. This legislation
proposes to recognize the autonomy of that individual to self-administer. To
that extent, that's what the law is proposing.
Senator Boisvenu: My question is a very general one. Health is a
matter of provincial jurisdiction in terms of administration, somewhat like the
administration of justice. We have the Criminal Code which sets parameters for
sentencing and the context in which the judge may impose sentences. Criminals
have rights, but there are very few rights for victims, as we know.
Senator Joyal: Well, you can be proud of the charter you have
Senator Boisvenu: Why was the philosophy underlying this bill not,
rather, opening a door to the provinces through delegation? We could have done
something akin to what is done in the justice context. Why did we choose this
very restrictive framing of the means that are offered to health care
professionals? What was the objective of restricting things, rather than leaving
the door open to the provinces so that they may on the basis of their culture
and specific characteristics, themselves set parameters for the work of
Mr. Kennedy: I will begin by answering the question, and then let my
colleagues from the Department of Justice address certain details. We have had
many discussions with our provincial colleagues in preparing this law and in the
study pursuant to the Supreme Court decision. They said they were concerned by
the possibility that there would be large differences among jurisdictions.
Overall, the provinces indicated that they would like to see a certain
similarity, or a very similar approach, throughout the country. We paid close
attention in preparing the bill to the concerns of the provinces, and we wanted
to avoid the possibility of there being vast differences among jurisdictions, as
we wanted also to avoid medical tourism and the problems that might cause.
Senator Boisvenu: That opposition must not have come from Quebec.
Mr. Kennedy: Quebec did not really express any concerns about this
Senator Boisvenu: The Quebec law is less restrictive than the federal
Mr. Kennedy: We have to consider the Criminal Code. We are going to
open a window and provide a framework, in a sense, but it is really up to the
provinces, in the void created in the Criminal Code, to determine exactly how
things will work. However, that window was created for the purpose of creating a
similarity, a certain common approach throughout the country. When we talk about
drugs and the process for physicians and all of that, those aspects will fall
under provincial jurisdiction. As for nurse practitioners, it will be up to the
provinces to determine exactly how things will proceed. I do not know if I have
answered your question.
Senator Batters: Ms. Klineberg, in talking about the 15-day waiting
period, the bill also indicates that unless that person's "death, or loss of
their capacity is imminent.'' Although the legislation indicates a 15-day
waiting period, that could be reduced to immediately providing that service; is
that correct? That assessment of when that death or loss of capacity was
imminent could be made by two nurse practitioners; correct?
Ms. Klineberg: Yes, that's correct. I would just clarify that none of
that would mean that the other procedural safeguards could be avoided. There's
still the requirement for the written requests and the two independent
witnesses. All of the other requirements are still present. It's just the 15-day
wait period that can be reduced.
Senator Batters: It could be reduced down to immediately?
Ms. Klineberg: Yes, in the discretion of the medical practitioners.
Senator Joyal: My first question is about the fifth "Whereas,'' which
says "Whereas suicide is a significant public health issue.'' Have you paid
consideration to the fact that a person who is diagnosed with Alzheimer's, where
the person is aware that his or her condition will deteriorate, if that person
doesn't have access to an advanced directive, that person could put an end to
his or her life immediately or in the short term?
There are many examples of people being diagnosed with Alzheimer's that can
envisage the point whereby their personal condition would be so deteriorated
that their quality of life would be meaningless. By not giving them the
possibility to express advance consent, as Senator Lankin mentioned, you are
pushing those people to suicide.
Mr. Pentney: The government recognizes there are many circumstances of
suffering and many different situations. As the ministers and the legislation
have been clear, this is starting down a significant shift in the Canadian law.
The government is firmly committed, as the preamble notes, to continuing to
examine other related aspects, including advance directive.
It's not at all to deny that there are many circumstances and many dimensions
of human suffering. This bill is not about resolving all those situations. It is
about addressing a particular form of particular relevance given the Carter
decision, but it represents a choice for Parliament to make in terms of where
to start, recognizing that advanced directives bring with them a whole series of
questions and complications that will require further assessment and study.
Senator Joyal: By having the criteria at 241.1(2)(d), "their natural
death has become reasonably foreseeable . . . " and linking that to the
qualification of incurable, is it not in fact a medical decision? It says, ". .
. taking into account all of their medical circumstances . . . .''
As I understand it, there has to be a complete evaluation of the patient's
file. By introducing that criteria, are you not contradicting the fact that by
opening the physician-assisted dying to nurse practitioners that this is a
medical act that the doctors will want to exercise themselves and that nurse
practitioners would not be allowed to do?
Mr. Pentney: I'm not sure how to respond to the question.
First, yes, this will be a medical assessment. It will be an assessment by a
medical practitioner. Second, who that medical practitioner is will depend on
the nature and scope of practice that's otherwise authorized, I think.
Maybe Mr. Kennedy can add to that.
Mr. Kennedy: The government, in pulling this together, was mindful
that nurse practitioners in some jurisdictions do have broad physician-like
authority. In Quebec, for example, they practise under the supervision of a
physician, but in other provinces — it varies by province — they can assess,
diagnose, prescribe and treat patients for certain conditions. Depending on the
authority granted by their professional body or by the province, they can
provide a scope of practice that looks like some of the services that physicians
The other concern motivating the government, which we think is an important
concern, is the issue of access. We have a lot of remote and small communities
in Canada, and I think there were real concerns about the ability of patients to
be able to get access to this service if you didn't allow for a slightly broader
range of medical practitioners to be able to provide this kind of service.
Senator Joyal: My final question is in relation to life insurance
contracts, to which you refer to in the eighth "Whereas'' on top of page 2,
whereby you say insurance is a provincial domain, but if a province doesn't
legislate in order to recognize the legality of physician-assisted dying, it
would be a way to prevent some patients from exercising their rights. How do you
Mr. Pentney: There have been discussions with the life and health
insurance industry, and I'm sure evidence will come forward from that industry
looking at their aspect. In a sense, it's not a matter of reconciling it because
it's simply not within federal jurisdiction to regulate it. The "Whereas,'' in a
sense, is an expression of a hope and a wish and a desire, but like many areas
in this wonderful federation, it's not for the federal government to prescribe.
Senator Joyal: I understand that.
Senator McIntyre: The bill contains 11 clauses. I draw your attention
to the last clause, number 11, which basically states that clauses 4 and 5
relating to the filing of information will come into force on a date fixed by
order-in-council, and then other clauses come into force by Royal Assent. Why
would clauses 4 and 5 not come into force upon Royal Assent? I take it this is
meant to allow time required to set up a system for data collection. Would I be
Mr. Kennedy: That's right, senator. In the interim period the idea is
we will develop a protocol with the provinces and territories to gather data in
the interim, but we want to have a regulatory regime. We're talking to them
about what that would look like.
Senator McIntyre: So you need this time required between the two?
Mr. Kennedy: That's right.
Senator Plett: I want to take one more stab at trying to get an answer
where we don't pass it over to the provinces. I should have done this with the
ministers, rather than with the officials, but I will anyway.
There are indeed a lot of issues that you have rightfully said are under the
auspices of the provinces, and I accept that. Let me talk again about
conscientious objection. In paragraph 132 of the Carter decision, the
Supreme Court expressly recognizes the need for balance between the Charter
rights of patients and the Charter rights of physicians and allied health
professionals; for example, conscientious objection.
What harm would there be in the federal government to strike a law that deals
with conscientious objection, instead of just saying that they will pass that
off to the provinces? Are they afraid of dealing with it? Because they have the
right; it would not be against the Constitution for the federal government to
deal with that issue.
Mr. Pentney: Our interpretation is that it would go beyond the scope
of federal jurisdiction to prescribe a scope of practice or medical requirement.
The converse would be to have a clause in the law that would give either false
hope or false guidance that ultimately would not be legally effective.
I would underline that whether or not there's a clause in the Criminal Code,
doctors, nurses, physicians, individuals all carry the conscience rights that
the Charter guarantees them, and that will neither be supplemented nor adjusted
by a clause in the criminal law. There is a highly technical explanation for why
we cannot go so far as to prescribe practice by medical professionals in what
they can and must do in respect to meeting their professional or legal
obligations. That's clearly, we think, within the scope of provincial
jurisdiction. But I would underline as well that nothing in the bill compels any
medical practitioner to provide this.
Senator Plett: Well, I tried. Thank you.
Senator Batters: I wanted to follow-up on something that Senator Joyal
asked about the life insurance aspect.
Isn't this creating two classes of suicide victims? We would have life
insurance recipients or beneficiaries whose loved one died by suicide that was
medically assisted, and they would potentially be entitled to benefits; and the
other class would be made up of people who die by suicide because of mental
illness, and they wouldn't be entitled. Given that statistics continually show
that 90 per cent of Canadians who die by suicide suffer from mental illness, how
do you justify that?
Mr. Pentney: Thank you for the question, senator.
I would say that as both ministers noted in their earlier conversations, this
issue has sparked a national conversation across a range of topics going far
beyond the particulars of the Criminal Code. We would note the Canadian Life and
Health Insurance Association is in active discussion with the provinces and
territories, and we will see that discussion carry on.
What has been recognized here is the creation of an exception to the criminal
law and, therefore, something which is otherwise legal if it meets the criteria.
The government is expressing the hope that when someone exercises the rights
that the government is giving them in accordance with the law and obtains
medical assistance in dying, the life and health insurance situation of that
person would not be adversely affected, recognizing that the federal government
has no jurisdiction there.
The tragic situations of individuals who take their lives in other
circumstances that you are talking about is a conversation that we would hope
Canadians would carry on with, and that the Canadian Life and Health Insurance
Association, the provinces and territories and other interested parties would
continue to explore whether or not further adjustments are required in that
Senator Lankin: I guess this last question is directed to the
officials and asking them to take it forward to their ministers.
I think there is a great thirst from Canadians for this bill to satisfy a lot
of things, and I think we, as a group of senators, share in that thirst. Some of
the things I accept completely, and as a former provincial politician, I would
have moved immediately to take the federal government to court if they were
trying to legislate the scope of practice of health care practitioners.
Having said that, I believe that your responses to us indicate the importance
for continued discussion, the delicacy of the issues and, perhaps, polarized
views. There are many reasons that might bring us to this point of not providing
all Canadians with access to these provisions of the legislation, and that will
undergo further discussion.
Today, it was made clear that the five-year review of the bill covers the
entire bill, monitoring compliance and a whole range of things. The provisions
that will be studied are a separate process of study not yet determined, and
discussions with the provinces have yet to take place.
I hope you would take back from me, as one senator, a desire to hear from the
ministers what that process is going to look like and some timeline for that. I
think that people are not prepared to wait and that they do not want to have to
take their individual cases to court and go through that. If people have a line
of sight to a reasonable time frame for addressing some of these very important
issues and a process that will include them in those discussions, that might
give comfort to some of us. I don't know, but without that it's a very hard
stretch for some of us to support the lack of some provisions in this bill.
Mr. Pentney: Thank you for the question. On behalf of Mr. Kennedy and
myself, I'm sure we're absolutely prepared to take those issues back. Obviously,
ministers will be looking at the transcripts of this proceeding and would thank
you for the nature and quality of the questions. This is an important dialogue
for Canada, and you're making an important contribution. Thank you.
The Chair: We have a few more minutes left, and I want to take
advantage of this opportunity while I have officials here.
Senator Jaffer: I want to go back to the advance directive. I am
really concerned about that, because, provincially, we go so far in saying, "Do
not take extraordinary measures.'' Senator Lankin has said that if you do not do
many things, that's fine, but when it comes to getting help, you were talking
about having no advance directive. Someone who is sick but wants to live as long
as they can to enjoy their children and grandchildren might come to the
conclusion that if they do that, they have nowhere to turn.
Mr. Pentney, you were very generous with your comments to us, but we are
hearing from people who are saying that this is not good enough. We have waited
long enough. People have, in this case, so much pain and don't have access to
courts. We all know who gets access to courts.
Further to what Senator Lankin was saying, we do need answers. We are also
being held accountable by people who say, "Don't accept this because the June 6
deadline is not a deadline to die on. You must do more so we die with dignity.''
I again want to urge you to look at other countries that have advance
directives. I am not satisfied with the answers you have given.
Ms. Klineberg: I would like to provide a little bit of information
about the laws of other countries. There are, at present, really only two
jurisdictions in the world that permit advance directives for medical assistance
in dying in the case where the patient becomes incompetent.
Actually, let me clarify: There are four countries, but two of them — Belgium
and Luxembourg — only allow the advance directive to be carried out when the
person has been rendered irreversibly unconscious. That would not be the case
for patients with dementia and Alzheimer's.
The latest country to permit it is Colombia which just last year implemented
a resolution that sets out the process. We have no information from Colombia,
yet, whether this is happening or under what circumstances.
The only country that does permit it, and where there is some data available
from studies that have been done, is the Netherlands. I believe, as the Minister
of Health mentioned when she was here a few moments ago, that the studies and
evidence of how that is actually carried out in the Netherlands suggests very
strongly that even where a valid request has been made, physicians on the whole
are unwilling to abide by it. Many families also change their minds when that
situation comes around.
Internationally, there is really no evidence of what this actually looks
like. There is not one country that has good solid data about the willingness of
physicians to administer a substance to cause the death of a person who is
conscious but incapable of expressing their wishes. This is one of the
considerations, I think, that has motivated the decision and caused the desire
for more study.
I would also note, peripherally, that one of the pieces of evidence that was
critical to the trial judge's finding that the law was unconstitutional was the
fact that there was evidence from Canadian physicians of their willingness to
assist patients like Ms. Taylor. We have no evidence of the willingness of
Canadian physicians to provide this service to patients who have become
incompetent to express their wishes but remain conscious.
Again, in our discussions with the provinces and territories, we have asked
them to query their medical professionals, but there is some concern about the
possibility that requests might be made and then not carried out.
These are some of the additional considerations that I think play into the
decision the government has made.
Mr. Pentney: I would encourage the committee to look at the report of
the external panel that was appointed and, if there is an opportunity, to call
some of the members. They certainly did consult nationally and internationally
and can speak to the evidence they gathered during the course of their process.
Senator Plett: I just want to echo, at least in part, Senator Jaffer's
comments, although probably for different reasons.
I agree with what one of our colleagues said at the break. There has probably
never been a bill that so many people have disagreed with for so many different
reasons. I also believe that June 6 is not a hill that we need to die on, but I
believe the bill has gone too far. Those would be my reasons.
Let's make sure that we do have a bill that the majority of Canadians can be
in favour of. Senator Lankin said that Canadians do want something, but the jury
is still out on whether they want more or less than what we have. Thank you.
The Chair: Thank you all. It has been a long day for all of you. We
appreciate that, your patience and contributions to our deliberations.