Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 9 - Evidence - May 10, 2016
OTTAWA, Tuesday, May 10, 2016
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 2 p.m. to examine the subject matter of Bill C-14, An Act to amend the Criminal Code; and to make related amendments to other Acts (Medical assistance in dying).
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good afternoon and welcome, colleagues, invited guests and members of the general public who are following today's proceedings on the Standing Senate Committee on Legal and Constitutional Affairs. Today, we are continuing 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).
For our first hour, we have with us a panel of legal experts. From the Canadian Bar Association is Kimberly Jakeman, Chair of their End of Life Working Group; and Tina Head, Lawyer, Legislation and Law Reform. Also with us today are Dwight Newman, Professor and Canada Research Chair in Indigenous Rights, College of Law, University of Saskatchewan; Hamish Stewart, Professor, Faculty of Law, University of Toronto; and Randal Graham, Professor, Faculty of Law, University of Western Ontario.
Thank you all for being with us today. I understand the CBA is going to lead off with opening statements. The floor is yours.
Tina Head, Lawyer, Legislation and Law Reform, Canadian Bar Association: Mr. Chair and honourable senators, thank you for inviting the Canadian Bar Association to appear today. The CBA is a national association of 36,000 lawyers, with a mandate to promote improvements in the law and the administration of justice. The CBA's End of Life Working Group is mandated to advise the CBA on end-of-life issues, including medical assistance in dying.
My colleague Ms. Jakeman will describe the working group in more details and present the CBA's submission.
Kimberly Jakeman, Chair, CBA End of Life Working Group, Canadian Bar Association: You have our written submission, so I will make a short verbal submission. Afterward, please ask me questions with respect to either.
The CBA working group draws on the expertise of lawyers from all regions of Canada, including lawyers in private practice, the public sector and in-house counsel. They are from diverse areas of legal practice, including criminal justice, constitutional and human rights, health law, wills and estates law, elder law, children law, privacy law and dispute resolution.
Our clients include individuals seeking assistance in dying, planning for life and death transitions. They include health professionals, social workers, vulnerable persons, health and long-term care facilities, regulators and governments.
The CBA working group would like to comment on three aspects of the bill: first, the eligibility criteria; second, the scope of exemptions; and, third, the gaps in the safeguards.
The first aspect is the eligibility criteria. The CBA supports amendments to the Criminal Code that would align with the Supreme Court of Canada's decision in Carter, and it is our view that Bill C-14 falls short of that. The proposed subsection 241.2(2) defines "grievous and irremediable'' and four interrelated criteria that are key to eligibility.
The criterion that a person's natural death has become reasonably foreseeable has been the subject of much debate, but the working group believes that the entirety of that section is problematic. It narrows the language that we believe was carefully and intentionally chosen by the Supreme Court of Canada, and it introduces restrictive concepts of which the court was aware but chose not to include in the Carter decision. In practice, the definition limits medical assistance in dying to a person in the advanced stages of illness and whose death is clearly on the horizon. It is the CBA's position that subsection 241.2(2) should be deleted from the bill in its entirety.
With respect to exemptions, the working group leaves that medical assistance in dying is best approached as one option in the continuum of care. As a practical matter, that's how conversations of end of life take place. The language of the Criminal Code is not suited to this reality. At the one end of the spectrum, it prohibits counselling a person to die by suicide, and yet at the other end of the spectrum, conversations in the context of providing medical assistance in dying as set out narrowly in Bill C-14 are protected. But there is concern about the middle ground: the uncertainty of what falls in between where nurses, social workers, lawyers, family and friends talk with patients, clients and loved ones about life-care options, including medical assistance in dying.
We encourage amendments to the bill to ensure that Canadians need not fear criminal liability in those circumstances.
The third aspect is with respect to safeguards. There are several measures introduced as safeguards, and the working group believes that some of these require attention. Most specifically, proposed subsection 241.2(7) incorporates provincial standards of professional care into the Criminal Code, and we think it's unwise. It treads on provincial jurisdiction and creates an uncertainty that will inevitably cause a reduction in access to services and may lead to a difference in criminal standards across the country.
The working group recommends that that provision be deleted.
With respect to the issue of consent, proposed paragraph 241.2(3)(h) refers to the need for express content immediately before dying. This requirement may have the perverse effect of having someone suffer intolerably or refuse to take pain medication until the end or, alternatively, be withdrawn from a sedation to ensure that they can give clear instructions immediately before death.
There is a case out of Alberta's Court of Queen's Bench called HS (Re). It's a recent case. In that case, the court recognized the physicians having a continuing obligation to obtain genuine, ongoing and informed content to treatment. The court decided in that case that it was best left to the physicians to determine how best to comply with this requirement.
The CBA working group recommends that that section be deleted from the bill.
We have also made some technical recommendations in our submissions.
Finally, I would like to add that the CBA working group appreciates that the minister would like time to study situations of mature minors, persons with mental illness and advance requests. However, for the sake of persons whose constitutional rights are held in abeyance, we encourage firm and early timelines for these studies.
On behalf of the working group, I appreciate your attention and the invitation to appear before the committee. Thank you.
The Chair: Thank you.
Professor Newman.
Dwight Newman, Professor and Canada Research Chair in Indigenous Rights, College of Law, University of Saskatchewan, as an individual: Good afternoon. Thank you for the opportunity to appear before the committee. I appear as a professor of law and Canada Research Chair in Indigenous Rights and constitutional and international law at the University of Saskatchewan. My submissions are based on my ongoing work on constitutional law issues.
Before the committee this afternoon, I'll make four fundamental points. They're developed further in the written submissions that I've sent to the committee, although I'll try to speak to some aspects of them during my comments this afternoon.
I'll just run through the points quickly and then return to them. The first is that the Carter judgment has more limited implications for Parliament's potential applications than some have suggested.
Second, Bill C-14 appears to go beyond Carter in some ways that may raise concerns and may well adversely affect the constitutional rights of other persons beyond those contemplated as benefiting from the Carter judgment.
The third point that I'll raise is that Bill C-14 raises questions potentially worthy of significant further consideration in its impacts on indigenous communities.
The fourth point is a reminder that Parliament may actually have more options in respect of the June deadline than has been generally discussed.
To turn to those four points, the first point I would make is that the Carter judgment is not legislative in character. That's simply not the role of the Supreme Court, and it's not the role of Parliament to abdicate to the Supreme Court as if it were a legislative body. So the specific wording of the Supreme Court of Canada judgment needn't be entirely determinative. Obviously, there is a conclusion there on certain constitutional points, but the court's declaration is not a statute, and it's ultimately Parliament's responsibility to craft a statutory regime that meets the objectives that Parliament determines to be most appropriate.
There would be several points that support that basic claim. I would say it's consistent with the broader dialogue theory on the Charter that's discussed on a widespread basis.
A second point that I would make is the law concerning the interaction of section 7 of the Charter and section 1 of the Charter — the limitations provision — has shifted recently and since the Carter decision, arguably last week, in ways that may have altered the way in which one might think about what is going on in Carter. I would simply mention that although Carter did see a discussion to some extent of the Oakes test on the limitation of rights in the context of a section 7 claim, the Michaud decision of the Court of Appeal for Ontario has made very clear that a section 7 infringement can be justified under section 1. The Supreme Court of Canada on May 6 — a few days ago — has declined leave to appeal from that judgment, thus reinforcing the point. So I think that's worthy of attention.
The second aspect I will refer to is that proposed Bill C-14 sees Parliament taking on the responsibility of going beyond Carter in certain ways. In many ways, the bill is focused on end-of-life situations with respect of the Carter terminology, but there are certain wider applications that raise concerns for certain vulnerable groups, at least potentially.
For example, the particular way in which the reasonable foreseeability of death requirement is unconnected to other provisions of the law essentially says that someone whose death is reasonably foreseeable but who may be suffering from an unrelated condition faces eligibility under the law. One area of concern here would be someone with a mental illness without any associated physical illness who simply happens to be older and thus has a reasonable foreseeability of death but who may be contemplating assisted suicide simply in the context of a mental illness.
It's not clear that the court was contemplating that at all in Carter. If that issue went back before the court, I think one would argue as to whether it's distinguishable, and the bill that Parliament's proceeding with takes a fairly clear view on that.
Within the submission, I refer to some other considerations here, such as the possibility of individuals shopping across jurisdictions and categories of medical service providers in ways that probably weren't expected in the immediate aftermath of Carter. I won't dwell on those, but I want to turn to a very important further consideration. That's with respect to indigenous communities.
I want simply to say that the external panel that considered possible legislative responses to Carter received fairly limited bits of evidence related to assisted suicide in indigenous communities, but what it received raises important issues. As noted in the external panel's report, indigenous communities have individuals within them with a mixture of views on assisted suicide, but it's an issue that, for many people in indigenous communities, evokes trauma. There were expert expressions of concern of the potential for increases barriers between indigenous communities and health care providers that might arise from the existence of an assisted suicide regime.
I'll try to wrap up fairly quickly, but I do want to emphasize that in wrapping up matters so quickly on this law, here is something that's being quickly disregarded in some respects. Does the regime created by Carter and Bill C-14 effectively validate despair as the response to situations of various kinds of suffering? Does it validate suicide in ways that might have highly pernicious cultural effects in the context of indigenous communities? I'm not an expert who can speak to those, but I think that more should be heard from indigenous communities than has been heard thus far. It's ironic that there would be an absence of that on the very day when ministers are down in New York, speaking to these matters in new ways.
I'll just say very quickly — and it's addressed further in the written submission — that there are more options on "timeline'' than may have been noted. One of the Supreme Court justices hearing the extension application in Carter specifically, in oral argument, with nothing contradicting it, said that section 33 of the Charter would be available to extend the timeline. I just want to highlight that there are options. It's Parliament's choice on what to do on these things, and I wanted to present a few considerations.
The Chair: Before I introduce Professor Stewart, I want to remind you that we only have one hour. When you run over, especially significantly on the opening statements, it leaves limited time for members to ask you questions.
Professor Stewart.
Hamish Stewart, Professor, Faculty of Law, University of Toronto, as an individual: Thank you, Mr. Chair, honourable senators. I'm very grateful to the committee for the opportunity to speak with you this afternoon. I'm here as an individual, as a professor of law, who is interested in constitutional law, specifically in the law of section 7 of the Charter.
My comments this afternoon are directed primarily at the question of whether Bill C-14, assuming it passes in its current form, would likely survive a constitutional challenge. In other words, is it a constitutionally sufficient response to the Carter decision? I think it is a constitutionally sufficient response to Carter, which is not to say that there are not other responses which might also be constitutionally sufficient.
As we know, Carter has told us that section 241(b) of the code was unjustifiably over-broad in light of its own purpose. Its purpose was to prevent vulnerable persons from being induced to commit suicide at a time of weakness, the court said, but since this section banned assisted suicide, medically assisted death, in all cases, regardless of the person's particular situation, the provision was constitutionally over-broad.
Bill C-14 responds to that. As you know, it sets up four criteria for accessing medically assisted death, and it sets out eight safeguards to ensure that the four criteria are satisfied in particular cases.
It's quite right to say, as has already been said, that the language of Bill C-14 is not the same as the language of Carter, but the constitutional question is whether it's over-broad in section 7 terms. Put another way, would Bill C-14 prevent any individuals who satisfy the criteria set out in Carter from accessing medically assisted death? I think it probably would not have that effect.
With respect to the definitional criteria in proposed paragraphs 241.2(1)(b) and 241.2(1)(d), it's true that those criteria do not precisely track the language in Carter, but, in my view, they are constitutionally permissible safeguards to ensure that people who are, as the court said, tempted to commit suicide at a moment of weakness are not tempted to do so.
Another point to emphasize — and Professor Newman has already made this point — is that it may well be, notwithstanding my view on this, that Bill C-14 is over-broad because the Supreme Court has laid down, in its recent case law, a very individual-focused test for deciding whether a law is over-broad. So if a constitutional applicant is capable of identifying even one person who satisfies the criteria set out in Carter and who is unable to access the medically assisted death regime under Bill C-14, then it would be unconstitutionally over-broad.
But, as Professor Newman has said, the law on the relationship between section 1 and section 7 of the Charter has shifted in the past few years, particularly in relation to laws that are unconstitutionally over-broad. The court has indicated in Carter and in Bedford, and the Ontario Court of Appeal in Michaud, as was said, that it may be possible to justify an over-broad law under section 1 by invoking evidentiary considerations and policy considerations that are not to be considered under section 7 of the Charter.
So, as I have said, the government's argument in Carter that a blanket ban was required because it was too difficult to sort out the vulnerable from the non-vulnerable was rejected in the context of section 1 in Carter itself, but the court said, "Maybe Parliament can design a scheme that would enable the sorting of the vulnerable from the non- vulnerable.'' If that scheme is somewhat over-broad, it may nonetheless survive a constitutional challenge as a justified limit on section 7 rights if the government can satisfy the court that it's the best that can be done to separate the vulnerable from the non-vulnerable who want to access the assisted suicide regime.
So, in my view, the proposed regime under Bill C-14 would survive the constitutional challenge.
Thank you for your attention.
The Chair: Thank you very much.
Professor Graham.
Randal Graham, Professor, Faculty of Law, University of Western Ontario, as an individual: Thank you for inviting me to appear today. It's always an honour to be of service during the legislative process.
I've been asked to provide testimony today concerning Bill C-14 from a statutory interpretation perspective. Rather than commenting on the policies of the bill, I am present to comment on technical issues concerning the way in which Bill C-14, if enacted, would be interpreted by the courts. In particular, I've been asked to focus on the preamble to Bill C-14 and the role that it might play in the interpretation of the operative provisions of the proposed legislation.
I'd begin by saying that preambles are important. According to section 13 of Canada's Interpretation Act:
The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.
A preamble enjoys the same status as the statute's operative provisions. It's part of the act. It's considered and voted on by Parliament, and it's primarily used as a means of discerning the statute's purpose.
This plays a key role in the process of statutory interpretation as courts are directed by section 12 of the Interpretation Act to use the purpose of legislation as a guide when interpreting legislative text.
A statutory preamble together with the purpose that it might reveal should not be taken lightly. The Supreme Court of Canada has made it clear that in some instances, at least, where we find a conflict between the statute's purpose and that statute's operative language, the purpose may actually trump the literal language of the act, such that the court will either strain or even override the literal language of the act to make it conform to the act's purpose. As a result, in certain instances the purpose revealed by a statute's preamble might be regarded as even more important than the text of the statute's other provisions.
Of course, not all preambles are created equal, and some are more useful and effective than others. The preamble to Bill C-14, as currently drafted, is one that I would consider both important and potentially useful to the courts. First, the preamble recites a number of the social policies that have motivated Parliament to act. Moreover, several of those policies and some of the turns of phrase in which they're expressed are drawn directly from the text of the Supreme Court's decision in Carter v. Canada, suggesting that part of the bill's purpose is to adopt or mirror the views expressed by the court in that case. This increases the chance that Bill C-14 will be interpreted in a way that conforms to the views expressed by the court in Carter.
If you'd like to explore this in your questions, I could point out a few instances in which the preamble of Bill C-14 might in fact be used to colour the meaning of operative provisions of the bill.
One wrinkle in this analysis relates to the fact that Bill C-14 is an amending act rather than stand-alone legislation. If Bill C-14 is passed, it will not operate as a stand-alone piece of law but will instead change the content of other laws, including the Criminal Code. Once the amendments created by an amending act are implemented, the amending act is considered spent, meaning that for practical purposes, the amending act has no further legal operation. At that moment, much of the substantive text currently found in Bill C-14 will become part of other laws — laws that will not feature the preamble currently found in Bill C-14. The preamble itself will not be incorporated into any continuing legislation and will exist only in the spent amending act.
How does that affect matters? Consider the components the Bill C-14 that are to form part of the Criminal Code. The Criminal Code does not have any preamble at all, let alone one that corresponds to the text of Bill C-14's preamble. This might raise the question of whether the preamble to former Bill C-14 could then be used to interpret those amended sections of the Criminal Code.
The answer to that question is a definitive yes. Although those sections, in a sense, will be divorced from the preamble currently found in Bill C-14, that preamble would remain a resource available to the courts in their interpretation of the relevant Criminal Code provisions. In a sense, courts would make the same use of the preamble of a spent Bill C-14 that they would of the preamble of current operative legislation. This use of spent preambles has already occurred in a number of cases.
As a result, it's clear that the text of the preamble is important. It's likely to assist courts in establishing the purpose of the bill's operative language, even after the operative language is incorporated into other enactments. This can have a profound effect on the meaning of words or phrases found in the operative provisions of Bill C-14.
That concludes my opening remarks. Thank you.
Senator White: Thanks to each of you for being here. My question would be to Mr. Newman.
We had some discussions previously around the nurse practitioner/medical practitioner piece. It has to be one of each or two of one of those groups that would approve it. The nurse practitioner program is responsible to the provinces, but not every province is the same. In some provinces they have certain authorities that they would not have in others. Would you put your mind to whether it would be helpful if legislatively it required that one of the two be a medical practitioner?
Mr. Newman: I think that could be helpful. There's obviously a reason why nurse practitioners have been included in the bill. That's been cited in terms of the limited availability of physicians in some remote communities. An amendment requiring one individual to be a physician would be more in keeping with what the court spoke to in Carter in terms of the level of qualification of the individuals involved and the level of trust that there is with physicians.
In saying that, I say nothing against nurse practitioners, but I simply say that their presence in the bill would have surprised the Supreme Court of Canada.
Senator White: Mr. Stewart, do you have a thought on that question?
Mr. Stewart: I do not have any particular thoughts about the merits of that question. However, I would point out that it is another example of the interaction between federal criminal law and provincial jurisdiction over health, which Ms. Jakeman mentioned. Without expressing an opinion about her reservation on that specific point, it's inevitable in legislation of this kind that there would be some delegation to the provincial scheme because the provinces license doctors and nurse practitioners and set standards for their behaviour.
Senator Baker: Thank you to the witnesses for their very excellent presentations. In the time available to me, I have one question, Mr. Chair, which I'll put to the Canadian Bar Association.
You presented the picture that the decision of the Supreme Court of Canada dealt with more than the condition of Gloria Taylor. As I read the trial judge's decision, it dealt solely with the medical condition of Gloria Taylor, as did the decision of the Supreme Court of Canada, as I read it.
She was terminally ill, yet you say in your presentation that this bill goes beyond the Supreme Court of Canada decision. How do you square that with paragraph 66? You mention in your argument "grievous and irremediable condition.'' Paragraph 66 of the Supreme Court of Canada decision said that somebody in a grievous and irremediable condition would qualify for palliative sedation. That's end of life. That's two or three days; being put unconscious would qualify. Then at paragraph 127 of the Supreme Court of Canada decision, the two last sentences state that they're dealing only with the facts of this particular case. In other words, it's the facts of Gloria Taylor, somebody who was facing death; and you agree. How, then, do you justify an argument that says, "Oh, no, this bill really goes beyond the Supreme Court of Canada decision and is more restrictive in nature''?
Ms. Jakeman: First, the facts of Carter did not relate solely to Gloria Taylor. They related to Kay Carter, who, I don't think, would fit within Bill C-14.
Also, at paragraph 1159 of the trial judgment, Judge Smith actually refers to the group of people that were considered in her Reasons for Judgment. It was far beyond simply the facts of Gloria Taylor.
There are many affidavits, deponents before the court. Mr. Arvay has already been here and spoken about this issue. It wasn't only about Gloria Taylor's condition. A much broader group of people was addressed by the court.
Senator Batters: Thanks to all of you for being here, and a particular welcome to my fellow Saskatchewanian, Professor Newman.
I read this in your submission and you mentioned it briefly in your opening remarks: I would like to you to speak a little more about an elderly individual who has mental illness as the sole basis for seeking assisted suicide and could be eligible for assisted suicide in your opinion because their death, as they're elderly, could be reasonably foreseeable. Your written submission indicates that disallowing mental illness as a sole basis should be in the operative text of the bill, not just in the preamble. I've mentioned that before, as well, because it's my view that putting such crucial elements in a preamble is not a good way to draft legislation. Could you expand on those points, please?
Mr. Newman: We've heard very important evidence from Professor Graham this afternoon in terms of the preamble becoming spent and not becoming part of any of the pieces of legislation that the bill is amending.
In light of that, I don't think that particular phrase in the preamble is much of a reassurance versus the actual text of the legislation. The text doesn't say that death needs to be reasonably foreseeable as a result of the illness in question; it just says that death needs to be reasonably foreseeable. That's obviously open to interpretation, and the courts might find some way that that doesn't refer just to elderly people, but there will be some people whose death is reasonably foreseeable and whose only medical condition is a mental illness. It's not at all clear that that's a direction in which we should be going in light of the wish in the preamble. A conflict arises there.
Drawing upon Senator Baker's point, I'd highlight paragraph 126 in the Carter judgment, which says that:
To the extent that the impugned laws deny the s. 7 rights of people like Ms. Taylor they are void by operation of s. 52 of the Constitution Act, 1982.
The Carter judgment seems to have been fairly restricted to those like Ms. Taylor, and I don't see any evidence that the court was contemplating the extension of assisted suicide to those whose only medical condition was a mental illness. Obviously that raises very complex issues.
Senator Batters: You had a brief opportunity to tell us in your opening statement about R v. Michaud, but I think you brought up an important point. Could you expand upon the idea that section 7 infringement can be justified under the section 1 Oakes test? Just a few days ago — and thanks for the very timely information about this — the Supreme Court of Canada refused leave on that, so that judgment stands. Could you tell us more about that and how it impacts this particular issue?
Mr. Newman: To be clear, Michaud is a case in a regulatory context, but it is a case where a court has found a section 7 infringement justified under section 1 of the Charter.
Lawyers on the committee will be very familiar with the fact that the Supreme Court not granting leave doesn't definitively mean that they agree, but it also means that they are leaving the decision to stand. If they thought that this was an objectionable principle on something so fundamental, one might have thought that they would grant leave and hear the case.
These are challenging to interpret, but I think we're starting to see a position emerge in Canadian law now where section 7 infringements are being recognized as potentially justifiable under section 1. This was a highly contested point before, and it's something that is emerging as a position now.
There was some argument along these lines in the Carter decision. I'm not sure that counsel might not have said more on it, even to justify the prior regime at that time, had they known how fully section 1 would be developing. Certainly, any legislation that Parliament passes now will have the opportunity to have a section 1 justification put before the courts as to whether there are policy reasons broader than those that would fall just under section 7 that would justify some of the limits that may exist within the law.
In terms of caution on things like mature minors, I think there are many ways to justify that under section 1.
Regarding caution on situations of various sorts that the bill doesn't go into, I think this fits with Professor Stewart's comments that the bill would be constitutionally sustainable, and I raise the question as to whether even more limits could be put.
Senator Joyal: I'd like to address my question to Ms. Jakeman and maybe also ask for comments from the other witnesses.
The court has struck down section 14 and 241 of the Criminal Code on the basis that it was a too-broad prohibition under section 7 of the Charter. Now we have a bill that reintroduces a criterion that is "reasonably foreseeable'' to exclude all those who are not dying. It is essentially the same argument that the government has pleaded in court. If it is impossible to make the distinction between those whose death is not foreseeable, even though they suffer from a grievous, irremediable and intolerable personal condition, then we will exclude all of them.
I have the impression that, in fact, we are making the same parallel judgment in relation to foreseeable death than the government has been making in the court and that the court refused. How do you fare with that?
Ms. Jakeman: I think the CBA would take the position that that's correct. Terminal illness was front and centre in the government's argument in Carter, and it could have been part of the definition that the Supreme Court of Canada used and chose not to.
Now we see legislation that goes back to the government's argument in Carter, and I think that certainly is a problem.
I think paragraph (2)(d) — reasonably foreseeable death — is a really difficult provision for the legal community, as much as it's a legal term. That part of the definition is very ambiguous and unclear and is really concerning to the CBA.
Mr. Graham: Looking at paragraph (2)(d) — "death has become reasonably foreseeable'' — not to trivialize matters, but all of our deaths are reasonably foreseeable by dint of the fact that we are mortal. It can't mean that, so the question then becomes how, and by reference to what other materials, do we narrow it?
One could track some of the language of the preamble — the point of me being here in the first place — that follows very closely the language used by the court in Carter and try to minimize the impact of the language "reasonable foreseeability of death'' in order to minimize the rights articulated by the court in Carter. That would be one approach.
Another approach would be a maxim of interpretation called noscitur a sociis, or to know a thing by its associates, which says that where you have general language it should be narrowed so as to have a cognate meeting with those other words with which it is associated in the same provision.
In this particular instance, "death has become reasonably foreseeable'' is within a definition of a person having a "grievous and irremediable'' medical condition, suggesting that it's possible that the foreshortening of one's life must come from that particular medical condition.
If one wanted to interpret this narrowly so as to intrude as little as possible into the rights articulated in Carter, one might say that your particular medical condition has had some impact on your lifespan; a physician might say that your lifespan is going to be shortened as a result of this. We don't know how much it's going to be shortened and we don't know particularly when your date of death might arise, but it's been shortened in some non-trivial way by having this condition.
So we don't know how that will be interpreted. Generally speaking, a vague legislative phrase like that is left to be determined by the official processers of that: the courts or administrative bodies charged with enforcing a particular provision. But there are a number of ways, as I've said, that one might choose to narrow that.
Senator Joyal: Then it could not be interpreted under proposed subsection 241.2(7) of the bill — "reasonable knowledge, care and skill" — and left to provincial legislation or regulations. So we're going to have a checkerboard across Canada with one province interpreting foreseeable death in one way, another one interpreting it differently and another not interpreting it at all. We won't have the kind of national approach that legislation under the Criminal Code should have to make sure that everyone has the same measure of rights.
Mr. Graham: That is arguable. I would not be surprised to see a court hold this is a national standard, particularly given the language in the preamble about this being an important issue across Canada, and that it might have to be interpreted uniformly across the country. Again, in statutory interpretation there are no guarantees.
Senator McIntyre: Thank you all for your presentations.
Professor Stewart, in your brief, you write that the centrepiece of Bill C-14 is proposed section 241.2 of the code. As we know, that section falls into two categories: the safeguards and the criteria for medically assisted dying.
As I understand, your viewpoint is such that it is likely that if we're going to have a constitutional challenge, that challenge to the new regime would focus not on the criteria but on the safeguards. Could you elaborate on that, please?
Mr. Stewart: Yes. I should say first that my track record of predicting when the Supreme Court will and will not uphold legislation is very poor. People often ask me, when big decisions are coming, what I think, and I say that it's going to be this for sure, and I'm wrong. As a prediction exercise, it's not very good.
Although they don't perfectly track the language in Carter, my sense is that the criteria basically comply with it. That's my view. I know others have a different view. But Carter doesn't tell us anything about what safeguards should be in place because there weren't any under the former regime. They were not subject to constitutional challenge. The decision is not about which safeguards would be appropriate for determining whether particular individuals do or do not meet the safeguards.
I anticipate that the challenge may be to say, okay, even if the criteria are acceptable, these safeguards are so stringent that some people who are constitutionally entitled to access medically assisted dying will not be able to because the safeguards are too stringent. That's the kind of attack that I would anticipate on this legislation.
The question is going to be: Can the government satisfy the court that this is the best it can do in terms of, on the one hand, protecting people who might be tempted, in a moment of weakness, to access this regime, which is a legitimate policy objective — and there's nothing in Carter that casts any doubt on the legitimacy of that objective — and on the other hand enabling people who are constitutionally entitled to this procedure to access it. That's how I see the issue playing out.
My sense is that, yes, you could loosen the safeguards somewhat. That would compromise Parliament's objective of protecting those who are potentially vulnerable, and so it might be possible for the government to say that these safeguards are constitutionally adequate.
Both the trial judge and the Supreme Court of Canada commented a number of times that a medically assisted death regime with a stringent set of protections would be constitutionally sufficient. They didn't say what those protections would be.
I'm not sure if this is helping, but that's how I see the issue playing out.
Senator McIntyre: Professor Newman, you raise four interesting points. You raised the June deadline and the constitutional authority of Parliament. If you were Minister of Justice, would you invoke the notwithstanding clause?
Mr. Newman: That might be above my pay grade, but I think that it is something to consider.
This is literally life-and-death legislation. We've heard from many parliamentarians in media comments that they feel there's not been adequate time to discuss the issue. It would be a limited procedural use of section 33 to better protect the rights of all Canadians and to find a balance that works. Because when we talk about issues like safeguards, we need to remember it's not just those seeking assisted suicide procedures, but also the vulnerable whose equality rights and section 7 rights themselves are at stake. For Parliament to craft the ideal piece of legislation, if there's a feeling that there's not been enough time, I think section 33 ought to be a live possibility.
Senator Jaffer: Thank you very much for your presentations.
Professor Graham, as an expert on statutory interpretation, there are some terms in the bill that do not have definitions, but the Department of Justice has published an online glossary of terms used in Bill C-14. These include the "advanced state of irreversible decline in capability'' and "reasonably foreseeable'' death, two of the most contentious aspects of last week's hearing and from feedback that we have received from citizens.
Can you please tell us what force of law, if any, does an online glossary have? Would it be preferable that the content of the online glossary be included in Bill C-14?
Mr. Graham: The online glossary would have no force of law unless somehow it was incorporated by reference explicitly into legislation that was considered, voted on and passed by Parliament. To the extent that it would be useful, then, in the interpretation of something that has actually passed, we're getting into the realm of extrinsic aids.
Prior to 1998, the answer to that question would have been it wouldn't be considered very valuable at all. But in 1998 we had the Rizzo & Rizzo Shoes Ltd. decision in the Supreme Court of Canada, which really blew the doors off questions about what sort of evidence might be admissible for the purposes of determining the specific meaning of words or phrases found in legislation. That case focused on Hansard, the transcript of debates, which are actually infected by a lot of the same sort of weaknesses that one could perceive in an online glossary. Someone who has the power to make a statement in Parliament, like someone who has the power to make entries into an online glossary, might have a particular political motivation for incorporating a particular definition into that glossary.
What I've observed, having read a number of decisions in which extrinsic aids are used — they are generally considered admissible — is that the fight comes down to weight: How much weight will we attach to that particular extrinsic aid? Looking at the cases, that tends to vary directly with the amount of usefulness that aid has in generating a particular outcome.
If it's an outcome that corresponds to other matters that the court has taken into account and is about to generate a decision pointing in a particular direction, they might give considerable weight to something of that nature.
We see the same thing with international treaties that haven't been adopted, and white papers and position statements. All sorts of extrinsic aids are now routinely considered by the courts in their interpretation of law. They don't have the force of law, but they can play quite a significant role.
Senator Jaffer: There are three ways in which this bill is set out. First, of course, is in the bill itself, then the preamble and then the glossary. The best place would have been in the bill itself, the definitions, to give it more weight. Would you agree with that?
Mr. Graham: It's the clearest way, yes, even though, as I said in my opening statement, we do have lots of cases where the preamble from spent legislation continues to be used as an interpretative aid. At that point it's being used as an interpretative aid; it is no longer the text itself to be interpreted. It's something to cast light on the text rather than being part of the text itself.
That being said, we do have the 1993 decision of the Supreme Court of Canada, R. v. Egger where the court referred back to the amending act and actually used the language of the spent amending act to override the literal language of the extant provisions of the Criminal Code. It was also a Criminal Code case.
I don't want to underestimate the power of these aids to interpretation, but the clearest way to impress legislative intent upon these things is to have them be part of an operative section of the legislation.
[Translation]
Senator Boisvenu: Thank you very much for your very informative testimonies. I have the impression that the true consensus that is developing around this bill is that half the people think it is too restrictive and the other half do not think it is restrictive enough. In Quebec, when the legislation that was adopted was being drafted, we spent almost a year on public consultation to obtain a consensus. We know that with legislation like this, which appeals to moral, social and even religious values, if we do not get a consensus, we may be before the courts for years because one group or another will challenge it.
The question, which may be banal, is should we reject this bill and continue our consideration to come to a majority consensus, so that Canada can pass a bill that will also address people who are dying? Everyone agrees with legislation that deals with the dying. However, we also need legislation that takes into account people who are suffering but who are not necessarily dying, and who are leading lives that are unacceptable on a human level.
In this sense, should we not delay passing the bill, if not reject it, and continue this Canadian reflection? Rejecting the bill will have a relatively banal impact on the Quebec legislation and will give the provinces the opportunity to pass legislation that will make this medical act possible. So should we not simply reject the bill instead?
[English]
Ms. Jakeman: Through its governing council, the Canadian Bar Association made some resolutions last year. One of them was that there be in place an amendment to the Criminal Code that aligns with Carter. So the CBA's position is that we should reject this legislation until a time that proper reflection can be made.
There is case law in place. The Supreme Court of Canada has spoken in Carter, and we know across the jurisdictions that there are probably eight cases now across the country that have dealt with and interpreted Carter, and they've dealt with safeguards.
We know that what is in place now is working. So from the CBA's perspective, that is a very reasonable idea.
Mr. Newman: There are reasons to think further about the bill. If the motive in taking more time were to allow for further thought, that has good reasons behind it.
The question is what happens in the interim? In the absence of Parliament choosing to extend the deadline, which I've mentioned is a legislative possibility, the Carter decision simply comes into effect, and the consequences of that may be all that much more unpredictable compared with passing a bill.
I'm not sure if it weighs in favour of simply rejecting the bill if the aim is to have more time to think. It may weigh in favour of using section 33 to prolong the time to think and then to develop some type of response to the Carter decision.
The Chair: Mr. Stewart and Mr. Graham, if you'd like to respond, you've got about a minute to do so.
Mr. Stewart: Very briefly, in the four-month period since the Carter decision, people can apply for constitutional exemptions according to the decision. If Carter simply comes into force, it will not be necessary to apply for a constitutional exemption; people will be able to access physician-assisted death in accordance with the declarations set out in paragraph 127 of Carter. That will be a not-very-well-regulated process, I would say. I would not be enthusiastic about delaying implementation of the bill, even if it's not a perfect bill.
Mr. Graham: There are two separate questions here. One is: Will this survive constitutional challenge? I happen to share Professor Stewart's view that it would, notwithstanding his prior track record. The second question is: Would it be wise to pass this bill? That's not land on which I care to tread at this point.
[Translation]
Senator Dagenais: My question is for Professor Newman. I have the impression that we are being made to study this bill in "marathon'' mode to prevent us from fully understanding its scope, which is significant. If we have to proceed quickly, we will probably need to make amendments. What do you think should be removed from the bill so that it better respects the decision in Carter?
[English]
Mr. Newman: I'll first challenge the premise that the aim needs to be to better respect the Carter judgment. The aim needs to be to offer a parliamentary response to the Carter judgment, which might diverge from elements of the Carter judgment. As I mentioned in my first point, the Carter judgment is not legislative in character. It's ultimately the responsibility of Parliament regarding how it wishes to engage.
In terms of what might be worth amending, I've mentioned examples in terms of some of the safeguards that pose issues, and I discuss that more in the written brief.
I'm also not sure if all of the amendments that might be appropriate can easily be made in a Senate chamber under marathon conditions. One of the points that I mentioned was the fact that the external panel identifies specific impacts on indigenous communities that are different than those on Canadians generally. In some circumstances, some would think that gives rise to reasons to consult more extensively with indigenous communities, and unless that's something that's happening under the marathon conditions, it may actually be that it's not a simple matter to strike the appropriate amendments in the short time period under consideration.
Senator Plett: My question is for Ms. Jakeman. In your presentation, you talk about the preamble. Part of the preamble is what I find most concerning about the bill; namely, when we speak about mature minors. I have a very clear opinion on where I stand on mature minors — actually, I would like to hear them simply called "children.''
You suggested that you felt the government should possibly speed up the process in studying this. Since we're talking about people's rights and Charter rights, do you believe that a child's rights are impinged upon by not allowing a child to seek suicide, and at what age would you draw that distinction?
Ms. Jakeman: The Canadian Bar Association is actually in the process of studying mature minors, persons with mental illness and advance directives. We don't have a clear line on any of those. Our position is that whatever happens in the next — there's no particular provision or timeline in the legislation as to when that should occur. All we're saying is that we'd like to see it happen quickly so that if it's concluded that these are vulnerable people — and I can tell you that some members of the working group feel that they are — then their constitutional rights are dealt with sooner rather than later.
Senator Plett: To deal with something that your association isn't clear about at all — and I would suspect that the majority of Canadians aren't clear about it — would it not be wiser to move a little more slowly and tread carefully rather than move quickly on something we aren't sure about?
Ms. Jakeman: I take your point. Our point was only that this group of people is vulnerable as well, and they need to understand their rights under the Carter decision. Obviously, Carter doesn't deal with any of those.
Senator Batters: To quickly deal with mature minors, Ms. Jakeman, would you acknowledge that Carter specifically requires a competent adult, correct?
Ms. Jakeman: That's correct.
The Chair: Thank you, witnesses. We very much appreciate your appearance. I think you understand the time pressures. We could have had you here for another hour easily, but that's what we're operating under. Thank you for your contributions to our deliberations.
For our second panel today, we will be hearing from the regulatory perspective. If I mispronounce any names, you can correct them when you have the opportunity.
Joining us at the table are, from the Federation of Medical Regulatory Authorities of Canada, Dr. Douglas Grant, President, and Dr. Trevor Theman, who is a past president. From the College of Physicians and Surgeons of Ontario, Dr. Joel Kirsh, President, and Dr. Rocco Gerace, Registrar. From the College of Registered Nurses of British Columbia, Christine Penney, Deputy Registrar, Chief Officer, Policy and Practice.
Thank you all for being here today. The federation is going to lead off with opening statements. The floor is yours.
Dr. Douglas Grant, President, Federation of Medical Regulatory Authorities of Canada: Thank you. On behalf of the Federation of Medical Regulatory Authorities of Canada, I appreciate the opportunity to make these submissions.
Each of FMRAC's 13 provincial and territorial members is legislated provincially to regulate the medical profession in the interest of public safety. As regulators, we protect patients, and these submissions are made on behalf of the patients served by the regulators and in the interests of establishing effective regulation of medical aid in dying.
It will be the regulators' responsibility to communicate to the public and to the medical profession how medical aid in dying will be provided, and it will be the regulators' responsibility to oversee its actual delivery. In essence, as regulators, we foresee playing a central role in Canada's approach to medical aid in dying.
The need for brevity has been underscored. FMRAC supports many of the fundamental aspects of Bill C-14 and supports the provisions that extend exemptions from criminal liability to the ancillary health care workers. We particularly support the notion that two physicians be involved in the assessment of eligibility.
In large measure, FMRAC views Bill C-14 as being aligned with the same principles we outlined in a guidance document we generated in the immediate aftermath of the Carter decision. We particularly appreciate that Bill C-14 leaves room for the regulators to regulate the medicine that will be practised.
But FMRAC has a number of concerns particularly with Bill C-14. The first has to do with clarity. It's self-evident that clarity in this legislation is necessary for there to be a harmonized and effective approach to medical aid in dying, and I'd like to focus the submission on the language that "natural death has become reasonably foreseeable.''
This provision that was just addressed with your legal panel appears to address proximity to death as a criterion for eligibility. It's not for the regulators to make submission as to whether eligibility be limited to those near or somewhat near death, but, in the submission of FMRAC, this language, this criterion for eligibility, needs to be made clearer.
This is legal, not medical, language, and I think we just heard that the lawyers don't even like it. The language is too vague to be understood or applied by the medical provision and too ambiguous to be regulated effectively. Moreover — and I draw on the point made by the question of Senator Joyal — with multiple interpretations available, FMRAC may be faced with the challenge of harmonizing various provincial approaches, as each province seeks to interpret what "reasonably foreseeable'' means.
I think we have to recognize the danger that goes with an absence of clarity in that, in the absence of a clear language, physicians will be reluctant to act. If this language remains as it is, our submission is that a barrier to access may develop because physicians, unable to confidently assess eligibility, will be reluctant to act.
The second broad heading of our submission has to do with access issues, and many of these were touched on previously. I would particularly draw attention to the fact that Bill C-14 provides no contemplation for the arc of the competence-declining patient. Faced with the spectre of being denied medical aid in dying once found to be incompetent, patients may determine that they have no option except to seek medical aid in dying precipitously, while still competent yet before they would otherwise choose to die. This mirrors the situation that brought Ms. Carter to the courts initially - the need to seek death prematurely.
Physicians of such declining patients will be faced with the precarious task of making death-bed determinations of competence and feeling an urgency, perhaps, to provide the service their patients want before it becomes too late, before the patient slips into incompetence. Moreover, regulators will be faced with the impossible challenge of providing clear guidance to physicians attempting to navigate these waters on behalf of their suffering patients. Our submission is that this language needs to be made more specific with respect to eligibility of the patient whose competence is declining.
With respect to conscience, we have an uncomfortable history, as a profession, that the exercise of physician conscience has often come at the expense of patients' rights. We saw this dilemma with respect to contraception, with respect to abortion, with respect to access to blood products and with respect to access to traditional healing.
I recognize that my time is short. I apologize. Thank you.
The Chair: I apologize for that, but that's what we have to operate under.
Dr. Joel Kirsh, President, College of Physicians and Surgeons of Ontario: Thank you, Mr. Chair and senators, for this opportunity to appear before this committee in relation to Bill C-14. My name is Joel Kirsh and I'm President of the College of Physicians and Surgeons of Ontario. I've trained in and practised pediatrics, pediatric intensive care, and pediatric cardiology for the last 24 years at the Hospital for Sick Children in Toronto. Joining me to my left is Dr. Rocco Gerace, who has 29 years of experience in emergency medicine and has been registrar of our college for the past 14 years.
The college has a legal mandate to serve and protect the public interest, a role that we take very seriously. All our work as Ontario's medical regulator, including our response to medical aid in dying, is undertaken with a view towards fulfilling that mandate.
In 2015, the college drafted its expectations for physicians in relation to medical aid in dying. Our interim guidance document was approved by our council in early 2016 and has since provided guidance to physicians and support to patients in the absence of a legislative framework.
The college supports many aspects of the bill, but we will focus our short time on remarks related to our primary areas of concern — areas that we feel will impede patient autonomy and patient access to care. These areas include the eligibility criteria, safeguards and conscientious objection.
In relation to the eligibility criteria, the college has concerns with two elements in this section. The bill requires that patients must be 18 years of age and capable in order to access medical aid in dying. Connecting capacity to a specific age is at odds with the approach that underpins relevant legislation regarding capacity and consent. For example, in Ontario, there is no age of consent for medical care. Individuals are considered to be capable if they are able to understand relevant health information and the consequences of making a treatment decision.
The approach taken in the bill may lead to confusion in Ontario and other jurisdictions. It may also result in an uncomfortable inconsistency that is hard to reconcile. An Ontario patient under the age of 18 may be considered capable to refuse potentially life-saving treatment or request withdrawal of life support but would not be eligible to access medical aid in dying.
The definition of "grievous and irremediable medical condition'' contained in the bill appears to be inconsistent with the Carter decision, and as a result will cause confusion amongst physicians and the public. The requirement that conditions be incurable suggests that patients must explore and undertake all treatment options or cures before they can request medical aid in dying. This would force patients to pursue treatments that they do not find acceptable.
The requirement that patients must be in an "advanced state of irreversible decline in capability'' implies that patients must have a condition that progressively worsens over time. This will exclude conditions that may otherwise be serious and incurable and cause enduring and intolerable suffering; but these conditions are not progressive. The requirement that death be "reasonably foreseeable'' appears to require that patients be close to death before they can request aid in dying. This would exclude a patient who may have non-terminal conditions that are otherwise serious and incurable and cause enduring and intolerable suffering.
The second of the college's concerns relates to safeguards, specifically the definition of "independence'' and the provision regarding the reflection period. The definition of "independence'' as it applies to witnesses and practitioners will propose significant barriers to patient access. The requirements for independence of witnesses would prevent the patients' family, caregivers or health care providers from acting as witnesses. Some patients who would otherwise be eligible for medical aid in dying may not be able to find two such individuals to act as witnesses and might be force to call upon virtual strangers to act as witnesses to a request that is intensely personal and private or otherwise they would be denied access to medical aid in dying.
The requirements that practitioners not be in a business relationship with each other or be connected to each other would prevent physicians working in the same practice group or health care facility from providing medical aid in dying. In some communities, a single practice group or health care facility includes all physicians who serve that community. Patients in that community would have to leave their community to receive medical aid in dying.
The college supports the requirement for a period of reflection but believes the language in the provision should be broadened to enable practitioners to shorten from 15 days for reasons related to patient suffering.
Our third area of concern relates to conscientious objections, which Dr. Gerace will address.
Dr. Rocco Gerace, Registrar, College of Physicians and Surgeons of Ontario: In respect of conscientious objection, we feel this is as important to patient access as the other issues. While the joint committee and the college have both said that at a minimum objecting practitioners must provide an effective referral, this has come under some criticism. We're of the view that this direction is consistent with the Supreme Court's dictum that practitioner and patient rights be reconciled. The fact that some physician groups are advocating for self-referral we feel abdicates our professional and ethical responsibility to put patients' needs before the needs of the practitioner.
We would urge the federal government to work with the provinces, territories and medical regulators to articulate clear expectations for practitioners that won't impede access to care.
Christine Penney, Deputy Registrar, Chief Officer Policy and Practice, College of Registered Nurses of British Columbia: Honourable chair and members of the committee, thank you for the opportunity for CRNBC to address you on this important social matter.
The College of Registered Nurses in British Columbia regulates 40,000 registered nurses and nurse practitioners in the public interest. Under legislative authority of the Health Professions Act, CRNBC sets and enforces standards to ensure that nurses deliver safe, competent and ethical care to patients and their families.
In response to the Supreme Court Carter decision and the special joint committee report, CRNBC has been working closely with our provincial counterparts and stakeholders, including the B.C. Ministry of Health, the health authorities, the College of Physicians and Surgeons and the College of Pharmacists in B.C., as we all carry out our respective roles related to establishing standards, protocols and safe approaches for providing and aiding medical assistance in dying.
In addition to considering and developing standards, limits and conditions for nurses and nurse practitioners in B.C., CRNBC has also been considering what quality assurance methods will be required to support nurses' involvement.
Our recommendations focus on two key areas: first, regulatory supports for inter-professional collaboration; and, second, quality assurance mechanisms.
Under regulatory support for inter-professional collaboration, we have five recommendations, which I'll get to in a moment. We've made a reference to the Canadian Nurses Protective Society. They have submitted a brief, and we have attached a letter supporting a couple of elements in that brief.
The first recommendation is that legislation addresses collaboration and shared decision making for patients, health practitioners and family members. Research from the Benelux countries demonstrates better outcomes for the person, their family and health care providers when there is legislative emphasis on the inter-professional nature of the work and the importance of collaboration throughout the process, for example, discussions of eligibility, multiple discussions to ensure comprehension by the person requesting assistance, and formal debriefing after the event.
The second recommendation is that legislation clarify the role of nurse practitioners related to determining a patient's eligibility requirements. If the diagnosis of a grievous and irremediable condition and the prognosis of foreseeable death are confirmed by medical consultation and diagnostic reports, then it is appropriate that a nurse practitioner could synthesize the information — the evidence — for the purpose of completing eligibility assessment either with another nurse practitioner or a physician. However, it is outside the scope of a nurse practitioner in British Columbia to independently determine the grievous and irremediable nature of a disease or a condition and also the prognosis.
The third recommendation is that the legislation clarify that only a physician or nurse practitioner may personally administer the substances. CRNBC sees the role of a registered nurse limited to aiding in medical assisted dying and excludes the administration of the substances.
Fourth, it is recommended that the preamble of Bill C-14 emphasizes the notable distinction between medical assistance in dying and palliative care. The intended outcome of palliative care is to improve the quality of life for those with serious illnesses. When receiving a request for assistance with dying, it is important to determine whether the request is being made as a result of unmet needs like physical, emotional or spiritual that additional palliative care activities may address, such as pain or symptom management, anxiety, loss of ability to carry out activities of daily living, et cetera. Medical assistance in dying is not an appropriate alternative for a person who is seeking palliative care.
The final recommendation in this area is that government not address language related to conscientious objection in the legislation because we see that it squarely falls within the jurisdiction of professional colleges.
The Chair: Thank you.
We will move to questions, beginning with the deputy chair, Senator Jaffer.
Senator Jaffer: Thank you all for your presentations, which will be useful in our work.
Dr. Kirsh, for me today you set out the challenge with mature minors where you, if I understood you correctly, already deal with mature minors as adults in the sense that they decide on what treatment they get and how they want to deal with the treatment. Now you're saying that we will be dealing with mature minors differently than adults. Did I understand you correctly?
Dr. Kirsh: Well, I'm here on behalf of the college of physicians of Ontario, but I will bring my pediatric experience to the table, senator.
I've also had extensive conversations with my colleagues in palliative care and pediatrics. You're going to be hearing from the Canadian Paediatric Society, I believe, on Thursday, so I can't speak for them. As it stands now, when we consider consent for medical procedures or medical care in a younger person — "younger person'' meaning someone who isn't 18 — we consider it in the context of the capacity they have for the medical procedure being proposed. Giving a young child stitches for a laceration is very different than taking them to the operating room for open heart surgery, for example, and that's going to be different according to the age. So there is a continuum of capacity according to the acuteness, the complexity of the medical procedure and the age of the patient. But there are also other issues for capacity for patients in terms of developmental status, which can be different in children even though they have the same age.
I work in an acute care hospital with complex patients and needs. I think to best answer your question, we recognize as a college the challenges that the current bill in its wording is going to present when we do have patients who are 13, 14 or 15 years old but their souls are older. They have had medical experiences that transcend medical experiences that most of us adults have had, which lends them the ability to consider some of the challenging decisions that are made in the context of Bill C-14.
Senator Jaffer: I have a question for the regulators, Ms. Penney and Dr. Grant. The question is about "reasonably foreseeable.'' When the minister was here, she said that she was purposely keeping it flexible so that it could be interpreted by the practitioners.
I have challenges with that. How do you regulate that, and how are you going to be able to advise the people you work with on what is reasonably foreseeable?
Dr. Grant: I don't know, which was the essence and one of the essential points of my submission.
Senator Jaffer: Yes.
Dr. Grant: I worry that if the language remains unchanged, there will be a variety of interpretations of "reasonably foreseeable,'' both province to province — although FMRAC will hopefully work towards consensus, and I'm confident it can — and in a range of interpretations from health authority to health authority, from physician to physician. It's simply not language that appears in the medical lexicon.
Ms. Penney: I think, similarly, nurse practitioners would be relying on the specialty evidence available and as the patient presents to them. Again, I think in our quality assurance recommendations, we really hope that there is standardization at a provincial level and that that's required within the legislation. It would not be very helpful if each of the health authorities had a different interpretation, and that's what will happen if there isn't a standardized care pathway.
Senator White: Thanks to all of you for being here.
Dr. Kirsh, just so we're clear, the suggestion you would make on the age is that it would be up to the medical practitioner to determine whether or not the individual was of a proper age to understand what they're asking for. I used to be a police officer. I couldn't interview someone under the age of 18 without a parent present. I'm trying to figure out how this would work.
Dr. Kirsh: I will come back to my original comments as president of the college of physicians. We're identifying this as an area of concern that we think will present a challenge. I don't think it's within my purview to suggest language or modifications to legislation. That's not my skill set at all.
The analogies I drew were meant to guide you towards the thinking that has led us to identify this as an area of concern where there is going to be a mismatch between life and death decision making in minors that will be set up by the current language of the bill.
Senator White: So your suggestion wasn't that it should include people under 18 to suggesting it could be a concern.
Dr. Kirsh: I think it's a concern as it currently reads. There has been some discussion about study and approaches, including other areas that aren't really defined in the bill, whether it's substitute decision making or advance directives. Those are all issues of potential concern that will merit further study.
Senator White: And you realize that we're doing this today because of the Supreme Court decision, which did not talk about minors at all. It didn't talk about under 18 at all. So it wasn't something that the Supreme Court of Canada directed to us in their decision, either, to consider the age of under 18.
Does the college also suggest that medical practitioners as well as nurse practitioners would not have the right to not refer? Is it correct that they must refer?
Dr. Kirsh: I'll leave that to Dr. Gerace.
Dr. Gerace: What our college has said, consistent with the report of the special joint committee, is that physicians have an obligation to make an effective referral either to another practitioner agency or health practitioner. It's not optional. We feel the failure to do so would create barriers for patients to access legally sanctioned treatment.
Senator White: So both medical practitioners and nurse practitioners will have an obligation to refer.
Dr. Gerace: I can only speak to medical practitioners in Ontario.
Senator White: So we would treat them differently. Do you believe your membership would support that?
Dr. Gerace: Certainly it's reflected by our board, who voted unanimously, with one abstention, to support that in the case of assisted death. I would suggest that the vast majority of the profession would support that, but there are a number who do not support it.
Senator White: Ms. Penney, your opinion on the requirement to refer on the part of nurse practitioners?
Ms. Penney: For British Columbia, the language around "refer'' is problematic because it takes on a bit of a different meaning, so the language we've been using is that they must transfer the care and ensure that the transfer of care is complete.
Senator Baker: Thank you to the witnesses for their excellent presentations.
Dr. Kirsh, perhaps you can answer this question that's on the minds of everybody who looks at this bill. What did the Supreme Court of Canada intend as far as the application of the law is concerned with regard to terminally ill versus not terminally ill patients?
The Supreme Court of Canada brought down their judgment. Then it was extended for the four-month period. It gave patients the permission to go to a superior court judge to determine whether or not they qualified for physician- assisted death.
During that four-month period, the law was as contained in paragraph 127 of the Carter decision. However, according to the guidelines which your college wrote and that physicians were to follow — it operated as a guide to the Supreme Court cases in Canada. There were eight across Canada, and four of them mentioned your interim guidelines. I'm trying to get a copy of it. All the cases have involved terminally ill patients. They quote your guidelines in three of them. Did your guidelines allow for physician-assisted death in the case of someone who was not terminally ill?
Dr. Kirsh: Thank you for the question, senator. I'll express some relief. I thought originally as you opened your comments that the question was whether I could tell you what the intent of the Supreme Court was. I'm relieved by the second part of your question.
Our guidelines do allow for that because we follow very closely the Supreme Court's decision, and our interpretation of that decision —
Senator Baker: Just paragraph 127?
Dr. Kirsh: I can't speak to the specific line number, senator. I apologize. Our intention in drafting our interim guidelines for the profession in Ontario was to stay close to the Supreme Court's decision regarding "grievous and irremediable condition,'' and to revise the guideline as legislation or other case law became available to us. We've got staff pouring over all decisions and being involved in following the issue as things go along. In fact on Friday morning I'll be meeting with our working group again to further revise our guidelines as things become clearer.
Senator Baker: So it did allow for physician-assisted death to persons even though they were not terminally ill?
Dr. Kirsh: We stuck to the Supreme Court language, senator, which was "grievous and irremediable condition.''
Senator Baker: And "intolerable'' pain. There were three conditions: that there be conscious consent, grievous and irremediable condition, but also there would be intolerable pain.
Dr. Kirsh: "Intolerable suffering'' I believe was the language.
Senator Baker: Yes, those three.
Dr. Kirsh: We have stuck to the same requirements as set out in the decision on Carter, in our interim guidelines.
Senator Baker: Interesting.
Senator McIntyre: Thank you all for your presentations.
Dr. Kirsh, in reviewing the brief presented to us by your college, my attention was drawn to a document entitled "Interim Guidance on Physician-Assisted Death.'' I thought that was a very interesting document and I'll tell you why. This document has been used by physicians and judges of the Superior Court of Ontario and other provinces in managing requests for judicial authorization of medical aid in dying during the interim period from February to June of this year.
In order to avoid the potential for abuse of power to inflict death, especially on vulnerable people and for practical reasons, do you think a Superior Court judge should be required to review and approve each request for physician aid in dying prior to it being implemented? In other words, it would continue with this document that has been in force.
Dr. Kirsh: Thank you senator. I think you're asking me to have an opinion on what the legislation or the Criminal Code would say about that issue after June 6, and I think that's outside my area of expertise.
We haven't taken a position on judicial review or a requirement for judicial review. That could be perceived by some in areas of our province or areas of Canada to represent a barrier to access. As I think I've tried to focus my comments today, access for patients and autonomy for patients are foremost in our minds.
Senator McIntyre: Would others care to comment?
Dr. Trevor Theman, Past President, Federation of Medical Regulatory Authorities of Canada: I'm the Registrar of the College of Physicians and Surgeons of Alberta. Dr. Grant is the registrar in Nova Scotia. I also had the opportunity to participate as Alberta's representative to the Provincial Territorial Expert Advisory Group that looked at what was then called physician-assisted dying and providing advice to the Minister of Health and Long Term Care in Ontario and the Attorney General, and by them across the country.
I think the answer from my perspective and our college's perspective is that that would be an extra barrier. This is the intersection of the law and medicine, and the Supreme Court in effect, in my interpretation, said that this is now a medical act. This will be a legal act, just like 30 years ago termination of pregnancy became a medical act, and so we're medicalizing this. To have to take a medical decision to a Superior Court would be, I believe, obstructive to access in this country.
Dr. Gerace: I would agree with Dr. Theman. I think it's inappropriate to have the courts involved in medical care. This is between patients and their caregivers.
Senator McIntyre: With all due respect, I have to differ. Thank you.
Senator Joyal: Dr. Grant, was your association consulted by the department when drafting that bill, when they were wrestling with the various medical conditions that they were evaluating and their impact to be included in the bill to be sure that what they would be proposing would be workable by the profession?
Dr. Grant: FMRAC was not, to my knowledge, and I can say that the College of Physicians and Surgeons of Nova Scotia was not consulted.
Senator Joyal: Can I ask the same question to Dr. Kirsh?
Dr. Gerace: We were not consulted.
Senator Joyal: I will try to put it in the most neutral term. The government wrestled with concepts that are in fact medically loaded or have medical impact and are interpreted in the various provinces and 10 colleges of doctors that exist in Canada, but you were not consulted on the scope of a definition that at first sight raised problems. Are you aware of other members of the profession that would have been consulted?
Dr. Grant: When you say the profession, are you referring to regulators?
Senator Joyal: Yes, the regulators.
Dr. Grant: I'm reasonably confident saying that none of the provincial or territorial colleges were consulted, senator.
Senator Joyal: I would like to come back to your comment about how to define natural death that becomes reasonably foreseeable. Paragraph (d) of the bill, if you have it in front of you, states the following:
(d) their natural death has become reasonably foreseeable, taking into account all of their natural circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
How do you interpret the second part of the phrase? Does it model the first one or does it in fact make it clearer in terms of a doctor who would be faced with a situation to re-evaluate it?
Dr. Grant: I think you can probably anticipate my answer.
Senator Joyal: I'm not a doctor.
Dr. Grant: It's interesting that when the Carter decision came out, our sense was that that there was no proximity to death contemplated by Carter. The Quebec legislation, as you know, contemplates the condition as fin de vie. My attempt to interpret "reasonably foreseeable'' means with that modifier that death is not necessarily imminent but somewhat near and to be contemplated.
I think that's so difficult for the doctor. As we look at this through the lens of the suffering patient and the lens of the family, it's so difficult to interpret. I think every physician's horizon would be different. All physicians are encouraged to talk about end-of-life issues early with patients — that is, early in a process — so you can get a good sense of that. Physicians initiate that conversation at different points along the continuum.
Senator, our concern is that this is language that doctors will not be comfortable with, language that neither patients nor doctors nor lawyers really understand, and I don't really quite know how to regulate or implement it.
Senator Joyal: Dr. Kirsh, in your practice with minors, how would you implement those criteria if you would have to face such a situation?
Dr. Kirsh: I'm sorry, senator. Do you mean with regard to the "reasonably foreseeable'' language?
Senator Joyal: Yes, and without a prognosis necessarily having been made as to the specific length of time that they have remaining.
Dr. Kirsh: If you're asking specifically to my practice as a pediatric cardiologist, I deal with conditions that have potentially fatal outcomes all the time. It's impossible to predict for an individual patient a time that could be measured or the time between the moment you consult with them to when they could die, if they have a potentially fatal condition. In fact, we're guided against that because any prediction I might make in that circumstance is wrong in either one direction or the other.
This is not language that would help me as a practitioner in the pediatric field.
Senator Plett: My questions are to the two witnesses from the college of physicians. I'll ask the questions to both of you right away and then you can answer.
You take exception — and I find it alarming — that the bill suggests dying should be an option of last resort, as you state in some of your concerns.
I would hope that it is an option of last resort. This is quite literally life and death. You have essentially objected to every safeguard the government has put in place. From a medical perspective, how do you explain your objection to assisted dying being an option of last resort, and what kind of a physician would not explore and encourage their patient to explore every alternative and possible care before agreeing to the end of life of a patient?
My question on the conscientious objection is this: In what way is declining any sort of participation in this process or not referring the patient unethical? Whose ethics does the goal of preservation of life violate, and how can you suggest that the ethics of those who support euthanasia are more valid than those that do not?
Dr. Gerace: Firstly, in respect to conscientious objection, the focus of physicians has to be their patients, not their own view of the world. So a patient who requests information about a legal procedure is entitled to get that information. It's my view, and the view of the college, that a doctor who refuses to provide that information or arrange for that patient to get that information is behaving in a manner that's unprofessional.
I simply think that it is unconscionable not to put patients first. We dealt with this. Some of us are old enough to have been around when termination of pregnancy became legal, and that was the guide. If you didn't believe in doing an abortion, you arranged for your patient to see someone who could talk to them about it. It's all about the patients and not the practitioner.
Senator Plett: The Supreme Court, in Carter, expressly recognizes, in paragraph 132, the need to balance the charter of rights of patients and the charter of rights of physicians.
Dr. Gerace: Correct. We believe that demanding an effective referral effectively reconciled those rights. The doctor who makes the referral is not engaged in the act of terminating the patient's life.
It's like me as an emergency physician. If I have a patient who I think wants or needs surgery, I refer them to a surgeon. I don't decide whether they're going to get surgery. It's the surgeon that makes that decision.
Senator Plett: This is about somebody's life. I don't think it's the same.
Dr. Kirsh, could you answer my other question, please?
Dr. Kirsh: I'm going to defer to Dr. Gerace's response regarding conscientious objection.
Your other question, senator, related to what?
Senator Plett: It related to the last resort. At what point in the process should this be the first resort? What resort should it be for somebody to ask for the termination of his or her life?
Dr. Kirsh: I'd like to apologize if my remarks or if our submissions suggested to you that we were against the language, specifically "last resort.'' I think we stayed away from that.
Senator Plett: No, your submission states it very clearly: "It suggests MAID must be an option of last resort.'' It's one of the concerns you raised.
Dr. Kirsh: The other aspect I did touch upon relates to the language of "incurable'' in the legislation. We don't feel, as a regulator, in our guidance that a patient has to seek every possible remedy if some of those remedies or if some of those treatments are not acceptable to that patient. I think that is language that the Supreme Court used.
In terms of "last resort,'' sometimes not everything you do for patients to prolong their life meets their needs in terms of suffering and grievous and irremediable condition. My colleagues in palliative care, unfortunately, meet with this on a regular basis. Sometimes they cannot control a patient's pain. Sometimes they cannot control a family's anguish, and they are often met with questions from families about medical aid in dying for their child when it's clear that they have reached the limits of what palliative care can do. If that's what you mean by "last resort,'' then we are facing that as we speak.
Senator Plett: I'm sorry. I didn't say that's what I meant by —
The Chair: Senator Cowan.
Senator Cowan: Welcome. Sorry I was not here for the earlier part of your presentation. I have a clarification and a question. My colleague Senator Baker was talking about the cases that have been dealt with under the interim guidelines and suggested, I think, that all of those cases involved patients who were terminally ill. It's my understanding that a recent Manitoba case involved a woman who had ALS and the attending physician said that that person had three to five years to live. Is that your understanding as well?
Dr. Kirsh: I don't know.
Senator Cowan: There's been a lot of discussion about June 6 being a deadline. Let's suppose the bill doesn't pass by June 6. We would then be left with the decision of the Supreme Court of Canada in Carter and the guidance that that provides, and then the work that your various regulatory agencies would put in place for the guidance of physicians. Can you give us some indication as to how that landscape would look to you?
Dr. Grant: There will not be a vacuum. This won't be the Wild West. There is sufficient guidance in the Carter decision, and the regulators who are legislated to have the responsibility of regulating the delivery of the practice of medicine will regulate.
Nor is this uncharted territory. The reason this question came before the Supreme Court of Canada — essentially the same question as the Rodriguez question, 25 or 26 years its predecessor — is that the world has changed. There is worldwide experience in the delivery of this. The essential feature of the delivery of medical aid in dying is that it's a medical act.
The one glaring area of concern in the situation where there's no legislation is medicine today is delivered in teams. The opening question of the exemption or protection to be afforded those that help physicians in the delivery of this care would worry me. I am confident in the absence of legislation that if more thought and time is required the regulators can fill that.
Dr. Gerace: When the College of Physicians of Ontario produced their guidance, it was produced with a view that there would not be a law. We were butting up against the February 6 deadline. There was no indication of whether there was going to be an extension, so we created guidance for that eventuality.
It would be unfortunate if things like the team-based care that Ms. Penney alluded to would not be possible. That would not be a good thing. There would not be a national registry of deaths so we can monitor the effectiveness.
While life will or will not go on, on June 6, should there not be a law, there will be deficiencies in the system.
Senator Cowan: I'm not arguing against legislation. I'm just asking if the sky would fall if there was no legislation in place. You've answered my question.
Dr. Theman: To me the critical piece, if you could, is to create protections for other health care providers.
[Translation]
Senator Boisvenu: My question is for Ms. Penney. I would like to thank all of you very much for being here. Your testimonies confirm that this bill deserved broader public, professional and legal consultation than we have given it. I am not blaming the committee chair, but I find it unfortunate that our study is rushed. Ms. Penney, you stated earlier that the work of nurses in this area should be limited to aiding the patient and should exclude administration of the drug. Have I understood that correctly?
[English]
Ms. Penney: Yes. We suggest registered nurses, so it's different than nurse practitioners. Nurse practitioners have a scope of practice that would allow them to administer the substance. Registered nurses, in our view, do not.
[Translation]
Senator Boisvenu: Medical care in remote northern communities is often administered by nurses, with the help of the attending physician who communicates by Internet or closed-circuit television because it is rare for a doctor to be there permanently. So it is often the nurse who administers medical services, with the exception of surgery. How can we make your position compatible with the administration of the drug and aiding the patient in communities like this?
[English]
Ms. Penney: I think we could, if physicians or nurse practitioners were available through the procedure.
[Translation]
Senator Boisvenu: But most of the time, the professionals or physicians are not available, and the nurses are the ones who provide all the care and services over fairly long periods of time. Are we going to let the patient suffer and wait for the doctor to come to administer the drugs? I am trying to understand how these people in remote northern regions can receive equal treatment to that given to people in the south. I am concerned about the fate of these communities.
[English]
Ms. Penney: Yes, I understand the concern. I guess our concern is that nurses may not have the capacity to deal with unintended consequences — if someone is dying, they wake up, if they have seizures. A nurse's scope of practice is limited if they don't have guidance from a physician or a nurse practitioner.
People in the North should really have the same standard of care that people otherwise have. Now, of course, geography sometimes limits that. But nurse practitioners are becoming more and more prevalent in the communities as well.
[Translation]
Senator Dagenais: I have two quick questions for Dr. Grant. First, how did you take the unnecessary broadening of certain powers of nurses and pharmacists? Also, to what extent do these nurses and pharmacists have the capacity to judge what we must call, under the bill, the irremediable condition or reasonably foreseeable death of an individual?
[English]
Dr. Grant: Thanks for the question. It would not be for me to speak to the scope of practice of nurses or pharmacists. In the Nova Scotia experience, when working with nurse practitioners, they operate independently but not autonomously, so always in a collaborative relationship with physicians.
Your question was more focused upon the language and the determination of who is best trained and best positioned to make a determination of whether a condition is grievous and irremediable. This comes back to the patient. The challenge of practising medicine is to bring your knowledge to the table but also to see the situation through the eyes of the patient. The important modifiers in the language of Carter are that these things are seen through the eyes of the patient. It's enduring suffering intolerable to the patient, irremediable to treatments acceptable to the patient. That's the role of the physician, to understand the view of the illness, meaning the disease experienced, to understand the patient's illness.
You know my concerns about "reasonably foreseeable.'' It's language that doesn't compute for physicians. In terms of who best to make this determination, I can say that that's something physicians can do.
Senator Lankin: Dr. Kirsh, you spoke about the mature minor, and you made reference to the Health Care Consent Act in Ontario and some of the provisions of that. The flip side of that is capacity assessments and advance directives and substitute decision making. It's a very complex regime that works together, but it's working, I would argue.
This is to all the physician college representatives: When the ministers were before us, a question about advance directives and why the exclusion and other questions that were about mature minors, the response we got was that the provinces, while they have different regimes, some of them find the regimes are not working well on advance directives and on consent to treatment. I hadn't been aware of that. I had not seen anything written about that or anything discussed. In your experience across the country, do you affirm what the minister said, or do you have a different view?
Dr. Gerace: I personally, senator, think it's working well in Ontario, so I would defer to my colleagues from Nova Scotia and Alberta.
Dr. Theman: It's a question of what exactly might not be working.
In the sense of our providers always paying attention to what is in a patient's personal directive and acting on those wishes, I hear anecdotally that that does not always happen and is an issue. In other respects, I'm uncertain what specifically the ministers were speaking to.
Dr. Grant: I, too, the same thing. I don't think we're seeing failings of the system, but occasionally actions are taken not in contemplation. Occasionally physicians may fail to iron out the details of a plan and there's confusion. But I don't think it's a failure of the system; it's the application of the responsibilities.
The Chair: Thank you all, witnesses, for taking time out of what we know are very busy schedules to assist the committee in its deliberations. We very much appreciate it.
For our third panel today, we have from the Canadian Association for Community Living, Michael Bach, Executive Vice-President; from the Council of Canadians with Disabilities, Rhonda Wiebe, Co-Chair, Ending of Life Ethics Committee joining us by video conference from Winnipeg; from the Disabled Women's Network of Canada, Carmela Hutchison, President; and from the Canadian Society of Palliative Care Physicians, Dr. Susan MacDonald, President, and Monica Branigan, Board Member and Chair, Working Group on Hastened Death. Thank you all for being with us today.
We will begin with Ms. Wiebe via video conference. Please lead off with your opening statement.
Rhonda Wiebe, Co-Chair, Ending of Life Ethics Committee, Council of Canadians with Disabilities: Thank you for this opportunity today.
The Council of Canadians with Disabilities is the largest organization in Canada made up of people with disabilities and speaks for people with disabilities. Unlike other groups, CCD has been around for 40 years and has worked to gain equality on a wide range of issues from transportation, to health care, to education, to pension and to income. We look at a holistic picture of what it is to live with disability and work to make sure we have the same rights as other citizens.
We acknowledge the Supreme Court of Canada ruling in Carter and appreciate that you seek input from our community. We in no way want to be obstructionist to this legislation. Rather, we want to make sure it is the best legislation it can be. We offer our perspective because we know what it is like to have grievous and irremediable conditions. We live with them all the time.
I declare that I'm a person with disability. I've undergone 21 surgeries. I'm legally blind. I have mobility restrictions, and I live with significant pain. I will continue to lose capacity, so I need to keep defining what it is to be a person of value, dignity and autonomy.
Autonomy doesn't argue against safeguards because not everyone has the same choices. If we can't understand our choices, it may be because they aren't communicated in a way that is accessible to us. Many physicians don't have the skills to explain choices in sign language or to someone with aphasia or cognitive disability or people who are deaf- blind. If we think that we've run out of choices about where and how we can live, what we can learn, what we can earn, where we can go and how we can relate to our communities, we become unnecessarily vulnerable. We lose resiliency. We lose autonomy.
Consider the many social factors that affect us. We still face discrimination to the point where we need protection under the Charter. Canada has a well-meaning but detrimental history of politics and policies regarding disability, including eugenics, infanticide, institutionalization, forced sterilization and segregation. Legislative bodies played significant roles in these atrocities, and yet we've always been told by able-bodied Canadians that "this is for your own good.''
Given this, what do autonomy and vulnerability mean? When you acquire a disability, you have to adjust to loss. Every day you negotiate the world in new ways to get around, to live, maybe new housing, new ways to learn and to relate to others. As we espouse autonomy, we must acknowledge the problems that lie in our lack of supports to just go on living and the discriminations we face.
We're concerned that some people who request medical aid in dying are vulnerable to the shock of these changes and that they are now part of a socially marginalized group. Many groups facing social marginalization need Charter protection. The news is filled with incidents where people from socially marginalized groups want to end their lives. The rate of gay teenagers killing themselves reached such significance that the worldwide "It Gets Better'' campaign was launched. The campaign offers a clear message to gay, lesbian and transgender youth that despite soul-crushing prejudice, they're great the way they are; it's going to be better if they can find the right people and the right supports out there.
We ask you to adhere to the Supreme Court mandate to protect the vulnerable "from being induced to take their own lives in times of weakness.''
The CCD, along with organizations nationwide, endorses the Vulnerable Persons Standard. Please remember the whole picture. Remember that we are more likely to live in poverty, to be uneducated, to have experienced abuse. We are less likely to be employed. Remember, we are more likely to live in unsafe and inadequate housing. Remember, we face barriers in our physical encounters with the world and stigma on a daily basis.
We want a good life along with a good death. A good death not only means the right to medical assistance in dying but also the right to accessible palliative care.
Thank you.
Dr. Susan MacDonald, President, Canadian Society of Palliative Care Physicians: Good afternoon, Mr. Chair, honourable senators, and invited participants. Thank you for the invitation to present our proposed amendments on behalf of the Canadian Society of Palliative Care Physicians, and thank you in advance for the hard work and thought that you will engage in on this manner. Dr. Monica Branigan will speak to our proposed amendments.
Dr. Monica Branigan, Board Member and Chair, Working Group on Hastened Death, Canadian Society of Palliative Care Physicians: We have thought long and hard about this, and we have three specific recommendations for amendments to Bill C-14 that will ensure that the right to palliative care is as robust as the right to hastened death.
Currently, that is not the case. We do know that perhaps up to 3 per cent of Canadians will avail themselves of hastened death. Perhaps 10 per cent of us will die suddenly. That means 87 per cent of us can benefit from palliative care, and yet we have no right to that care. It is currently a patchwork and it really depends on where one lives. So we have thought about how we can enshrine protection so that there is, in fact, a right to palliative care in Bill C-14.
Our first recommendation is to amend the last paragraph of the preamble to state: "And whereas the Government of Canada has committed to develop legislative and non-legislative measures that would support the improvement of a full range of options for end-of-life care . . . .'' We would ask that the following phrase be included: "including establishment of a national secretariat in palliative care.''
A national secretariat has the scope to make sure there is a consistent approach across the country and to implement a national strategy in palliative care. This work has already been done. What hasn't been done is figuring out how to implement it. This means that we can set and monitor Canadian standards not only in the provision of end-of-life care but also in the education of all professionals.
In addition, a national body is required to look at how to support caregivers, not only how to provide information and tools but job support and protection when they are caring for loved ones.
Finally, a national body is required to set up a public information campaign, because the public does not know about palliative care, does not know about advance directives, and has so much fear about death and dying that causes so much unnecessary suffering.
Our second recommendation is regarding the eligibility requirements, specifically (d): "they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure.'' We would ask for this phrase to be added: "or lack of access to services required to address the root causes of the request, including, but not limited to, palliative care, chronic pain care and geriatric care.'' By this, if palliative care is not available, how can a request truly be voluntary? If there is not an option, it's not voluntary.
Our third recommendation would be to add a new section in the eligibility requirements to state: "provide documentary evidence that the eligibility criteria have been met using federally established standards.'' This means that we would keep track of whether there has been access to the services that people require or whether that is the reason that they are requesting hastened death. We have really good data about why people are making this request. As the act says that there is going to be a review in five years' time, you want really good evidence to be able to make further decisions.
In summing up, we believe that the right to palliative care should be as robust as the right to hastened death, and we have made three specific recommendations that I hope you will endorse.
Thank you.
The Chair: Thank you.
Mr. Bach.
Michael Bach, Executive Vice-President, Canadian Association for Community Living: Thank you, honourable chair and members of the committee. I'm pleased to present to you this afternoon on behalf of the Canadian Association for Community Living. We're the national voice of people with intellectual disabilities and their families, working for full citizenship, human rights and inclusion of people with intellectual disabilities.
I want to begin by saying how saddened we are by how bitter this debate has become. We wonder if we've lost common cause in this country about what being compassionate means, our shared understanding of suffering, and a sense of what it's going to take to protect the right to autonomy but also respect vulnerable Canadians. In fact, the section 7 rights of all Canadians are something for which we don't have a common approach, a common sense of purpose going forward. We're very concerned about how divisive this is going to leave us as Canadians and us in the health care system.
I want to say at the outset that, from the beginning, that is what has motivated our proposals. We've been surprised at the ferocity of the negative reactions to our proposals for safeguards for vulnerable Canadians. I was struck by the representatives from FRMAC who said, "Listen, the main objective here is to ensure access.'' Absolutely, but the other objective that the court said is how to protect vulnerable Canadians. We just don't think it's necessarily that simple. Vulnerable Canadians don't show up with a sign on their chests that say, "I'm a vulnerable Canadian. Don't give me access.'' That's what's motivated our work from the beginning
And it's true that we were in the Carter case. We argued to keep the ban in place, because our concern was that would be the strongest safeguard for vulnerable Canadians. We fully respect the decision.
When we returned, after the decision came down, to working on safeguards, we worked with what the plaintiffs had put forward in the trial decision as the safeguards that they said must be in place if we're going to protect vulnerable Canadians going forward. We thought those were the parameters that made sense to work in.
What the plaintiffs, legal counsel like Joe Arvay and B.C. Civil Liberties, put forward was that there had to be a mandatory psychiatric evaluation in all cases; there has to be a required palliative consultation; it has to go to prior review; and there has to be a patient right of appeal to decisions of prior review. Those are the proposals we've been putting forward.
The reaction we're getting now is that we're just being obstructionist. We lost in Carter; now we're being obstructionist. Actually, all we've tried to do is detail what the plaintiffs put forward in the first place, because we agree with them. We agree with the submissions, and we agree with what the trial judge arrived at and the evidence that she drew from the plaintiffs on which safeguards were needed — evidence that the Supreme Court of Canada definitively accepted and didn't challenge in any way.
Nonetheless, we are where we are. In the spirit of trying to build common understanding — because June 6 is going to come, and if we don't have the legislation then, hopefully we'll have it at some point, and somehow we have to come back together.
In the few minutes that I have, I'd just like to say that a lot of work we've done is to try and parse out what is meant by being vulnerable to being induced to commit suicide in a time of weakness. There's extensive and growing research on what inducement actually means, and we've got evidence from the other jurisdictions where these systems are in place.
Extensive clinical literature points to five types of inducement. The first is that people are induced as a result of distorted or disordered insight as a result of a medical condition.
The second is the hopelessness and despair that comes from self-stigma associated with a negative social and cultural status in society, some of the things that Rhonda has talked about.
The third is direct coercion. We have those case examples from Oregon, for example. There was one case where a man was given a choice by his family caregiver about either going for assisted suicide —
The Chair: I have to ask you to sum up.
Mr. Bach: So the literature is there.
Our submission details our proposals, which build on what we've heard from my colleagues, and asks to strengthen the standard of informed consent. If we're not going to have prior review, let's at least get a study on prior review in the preamble, given that we're looking at studies to make the system more permissive.
Thank you.
The Chair: Ms. Hutchison, please go ahead.
Carmela Hutchison, President (DisAbled Women's Network of Canada): Hello.
I just want to briefly introduce our organization. DisAbled Women's Network of Canada is a feminist cross- disability organization that deals with addressing issues faced by disabled women with respect to advancing the inclusion of women and girls with disabilities, and deaf women. Our overarching strategic theme is one of leadership, partnership and networking to address the issues of poverty, violence against women and disability.
Many of the protective principles in the preamble are not supported in the body of the legislation. That's one of the biggest concerns we have about the legislation. When you read the preamble, a lot of the things in there are really good and very supportive, but they don't address the intersectional barriers of ableism, racism, violence, poverty, discrimination, the lack of disability supports and resources for women with disabilities to lead safe and effective lives.
The five motions were made by a member of Parliament during our February 4, 2016 presentation with respect to palliative care that we also addressed earlier in this panel by our colleagues.
The Government of Canada must also comply with the Convention on the Rights of Persons with Disabilities, particularly article 6.
In our amendments, we want to add a phrase where it says:
. . . strikes the most appropriate balance between the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other;
And we want to add ". . . through the use of the Vulnerable Persons Standard.'' We want that phrase added in the actual legislation, because the Vulnerable Persons Standard, which we've all referred to here, was endorsed by 50 organizations. We think the use of the Vulnerable Persons Standard will best address those safeguards, because it's evidence-based and has been endorsed by 50 organizations.
In the preamble on page 2, we want to add a new clause, and say:
Whereas the Government of Canada has committed to uphold its commitment to the Convention on the Rights of Persons with Disabilities . . . .
We want to add that clause in there, because that's one of the bodies that Canada has committed to.
Then, where it says:
Whereas the Government of Canada has committed to uphold the principles set out in the Canada Health Act — public administration, comprehensiveness, universality, portability and accessibility — with respect to medical assistance in dying;
There's a clause after that which should be struck. We want to propose that it's struck:
And whereas the Government of Canada has committed to develop non-legislative measures that would support the improvement of a full range of options for end-of-life care . . . .
We want that whole next piece to be struck, and I've outlined it in the brief.
Then we want to emphasize that the legislation must follow all of the principles in the preamble. You must have legislation. There's not been one bit of legislation that upholds the principles in the preamble.
Then there's the part in the Criminal Code about consent to death and medical assistance in dying and what it means. We want all members of the health care team to be able to effectively communicate among themselves and with patients about medical aid in dying, because medicine is now carried out in multidisciplinary teams. The actual act of medical aid in dying should be limited to specialized teams defined within the legislation, but we must be able to have all members of the health care team able to communicate with one another and with patients.
With respect to "grievous and irremediable medical conditions,'' proposed paragraph 241.2(2)(c) states:
(c) that illness, disease or disability or that state of decline causes them enduring physical —
DisAbled Women's Network Canada wants the words "psychological suffering'' stricken. The paragraph would then continue:
. . . that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and
(d) their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, with —
— rather than "without'' —
— a prognosis made as to the specific length of time . . . .
So strike out "necessarily having been.'' There should be a specific length of time that is remaining, because, again, there should be some limits around that.
The Chair: I have to ask you to wrap up.
Ms. Hutchison: Under the "Safeguards'' heading and paragraph 241.2(3)(d), stating "ensure that the person has been informed that they may, at any time and in any manner, withdraw their request,'' how can a person withdraw their request once medical aid in dying has actually been administered?
Under paragraph 241.2(3)(g), "ensure that there are at least 15 clear days'' —
The Chair: We have to move on.
We'll begin questions with the deputy chair.
Senator Jaffer: One thing that has come up repeatedly is the issue of lack of palliative care. Dr. MacDonald and Dr. Branigan, one of the suggestions you made was to expand the eligibility criteria to include a lack of access to services required to address the root causes of the request, including but not limited to palliative care.
We know that many people at the moment do not have palliative care. I'd like to hear from both of you about how we ensure that citizens across the country, especially in rural areas and Aboriginal communities, get access to palliative care.
Dr. Branigan: I think our recommendations are all interrelated. We need to have leadership at a national level to ensure that's going to happen. This is Canada. It's not going to look exactly the same everywhere, but we do need to have some consistent standards. I know that there are some special challenges in rural areas, which I'll ask my colleague from Newfoundland to perhaps address.
Dr. MacDonald: I work in a tertiary area Newfoundland, but I often see and consult with patients all across the island and in Labrador. There are ways of being able to do that now that don't require somebody to physically be there. We can use technology in a variety of different ways to facilitate the fact that we are very few in number and that our patients are scattered all over.
Remember that palliative care is not just physicians. Physicians are sitting in front of you today, but we're actually a very large team. Nurses do a tremendous amount of work. There are far more nurses on the ground and in communities than there are physicians. We utilize our community health nurses. For example, in St. John's, we've trained all community health nurses in palliative care so that they're able to provide some of that.
Senator Jaffer: Ms. Hutchison, DAWN of Canada has been doing this work for a very long time and is very well recognized for their work. It would be helpful if you could tell us the additional challenges women with disabilities have in accessing palliative care.
Ms. Hutchison: They have the same challenges that have been described throughout the presentations. Access is continually as difficult and it doesn't seem to matter. Rural access and access for Aboriginal peoples are more difficult, but the same exists even in urban areas. It always depends on what funding is available and on how difficult the person is to manage in the home environment versus in a long-term care setting. There's a lot of pressure to always have people in the right place in the right setting, whether or not that's the person's choice.
Quality of care is always a constant issue. It's a perennial issue because palliative care, home care and continuing care, like all the levels of care, were never put in the Canada Health Act in the first place. Of course, people are afraid to open up the CHA to do it. We need to step up and get those national standards in place. We need to do the right thing.
The sad thing is that before even one dollar is spent on medical aid in dying, we should have all these things in place first.
Senator White: Dr. MacDonald, I understand you surveyed your membership in relation to palliative care medical practitioners providing physician-assisted suicide and that overwhelmingly they did not support being involved. I take it that means the organization you represent does not support an obligation on the part of physicians, or at least your physicians, to be engaged in any way or to be referring as well? Is that correct?
Dr. MacDonald: Our membership discussed and was asked directly: Will you do this? Will you provide the medication? Will you come in with the needle? That's what people were saying they would not do.
I would say that every member of the organization and every palliative care physician I've ever met will respond to a cry for help. If somebody says that they're suffering, "please help me,'' that's what we'll do. Regardless of the choices they make about treatment, whether it's chemotherapy, another surgery or medical aid in dying, we'll help our patients if they ask us.
Dr. Branigan: May I frame it in a way that I think might be helpful for you? We've had to work incredibly hard for people to even accept a palliative care referral because there is so much fear about death and dying. Our concern was how to make sure that palliative care is seen as distinct from the act of hastening death. We want palliative care to be a welcome and safe place for people who will never access that and for people who are considering that as something they want to do.
When we surveyed our membership, 26 per cent of physicians said they would consider it. It was not like they were not going to be involved at all. We really want to make it a distinct act from palliative care and to ensure that palliative care is perceived as a safe place for all people.
Senator White: About 74 per cent said they did not believe they should be involved; is that correct?
Dr. Branigan: Yes. You also need to understand the context of that. We're very concerned, less so as time goes on and more discussion takes place, but there was almost a knee-jerk reaction: "Oh, hasten death? We'll just refer to palliative care.'' You can imagine the fear that engendered. That was also reflected in that number.
Senator White: In the proposed legislation, there's an opportunity that the Minister of Health may make regulations in relation to tracking, which I think should be there. However, I would suggest it needs to be a requirement for a number of reasons, such as doctor shopping and health practitioner shopping. As well, if we are to review this in five years, we need something to review beyond anecdotal evidence. Would you suggest that it should be locked into the legislation rather than a suggestion that the minister considers such regulations?
Dr. Branigan: I think it should be a requirement, yes.
Senator Plett: I have two questions, one for Ms. Wiebe and one for the Canadian Society of Palliative Care Physicians, and of course others can answer as well.
Ms. Wiebe, let me do as my colleague Senator Batters did earlier with a witness from Saskatchewan. As a fellow Manitoban, I welcome to the committee.
My question, Ms. Wiebe, similar to that of Senator White, has to do with conscientious objection. Would you support the right of physicians, nurse practitioners and pharmacists to conscientious objection to the point where they would not do a referral but maybe give somebody a list of people that would be involved and that they would not have to go beyond that?
Before you answer, Ms. Wiebe, I'll ask my other question.
To the doctors from palliative care, my father was in palliative care the last two weeks of his life about six years ago and got marvelous treatment. I'll always have the utmost respect and appreciation for the people who work in that area.
The College of Physicians and Surgeons were concerned about one aspect of the bill and the fact that the bill suggests assisted dying should be an option of last resort. I was alarmed by that. I thought that all physicians should want that. How would you feel? At what point should a person ask for this if they do ask?
I'll let Ms. Wiebe answer and then if you would.
Ms. Wiebe: Thank you for your question.
The CCD has not taken a specific stance on physicians who choose not to participate. However, I would say that we would support those physicians who because sense that there is not equal protection for vulnerable persons, that medical assistance in dying is not considered for those only facing end of life, that medical assistance in dying is offered by someone who is not demonstrating voluntary and capable consent or that a request for medical assistance in dying was not explored to carefully see if the cause of the patient's suffering was induced from psychosocial or non-medical conditions. If an assessment of suffering and vulnerability doesn't take place, we would support those physicians who choose not to participate.
Dr. Branigan: Can I ask you to really give me a short, sweet question in your comments? I want to be able to address it.
Senator Plett: Let me again say that the College of Physicians and Surgeons has a problem with the fact that the bill says that this is supposed to be an option of last resort, to ask for medically assisted suicide, and they said they do not agree with that. I asked them: Should it be the first resort? At what point should a person ask?
My question is: Would you agree with the College of Physicians that this should be anything other than a last resort, that you would ask for death?
Dr. Branigan: I think it's going to be up to the patient and their perception of their degree of suffering. I don't think it's up to the physician to say, "Hey, have you thought about it?'' I think it's a question of exploring the suffering, and, if the patient is asking for other options, then of course you can mention that as an option.
My work is limited to talking to patients in the community and providing supportive counselling, so I've had many of these discussions before. My experience has been that patients are very happy to initiate that discussion and want more information about that.
Senator Plett: Let me rephrase the question a little bit. Do you not agree that, from a medical perspective that you should explain every option to the person and, in fact, ask them whether they wouldn't rather want to pursue some other option than dying?
Dr. Branigan: Thank you for that clarification. Do I believe that all options should be well explored? Absolutely. A lot of physicians do not know how to describe what palliative care is. That is a concern.
The other concern is, if you were a patient who was seriously entertaining this, would you really want to get this information from somebody who thought that the act itself was abhorrent, and the only reason they were providing this information to you was so that they could avoid sanction from the College of Physicians and Surgeons of Ontario?
I think that access is a huge problem. I don't agree that making an effective referral is the solution to that problem. Who do we refer to? That is an ineffective solution.
The best solution is to have a coordinating system at a provincial level, that is, a coordinating system to connect skilled and willing providers to eligible patients.
We do this in other areas like transplants. Look at Trillium Gift of Life. That's exactly what they do. Here is a patient; here is an organ. How do I make all of the links for them?
The system is what's going to make it work, not making an effective referral because some physicians — and this is a minority of physicians — feel that, "If I make a referral, I am saying I approve of this and am directly linked to the act.''
Many people would say —
The Chair: I'm sorry.
Senator Dagenais.
[Translation]
Senator Dagenais: Thank you to our guests. I have two short questions. The first is for Dr. Branigan. Do you think that offering better access to palliative care might significantly reduce the number of people who would turn to medical assistance in dying?
[English]
Dr. Branigan: The question is whether palliative care would reduce the number of people requesting this? I am not sure. There have been a lot of studies to suggest that, even for people in Oregon who do get a prescription, the vast majority of them are involved in palliative care. There will be patients who really value control, and that's not something we can change.
Will we be able to divert some people if there is accessible palliative care from choosing that? I think that is possible. I suspect, though — I don't want to appear arrogant — that we're not going to be able to ameliorate all suffering to a level that will be acceptable to all people.
[Translation]
Senator Dagenais: I have a quick question for Mr. Bach. If the bill was adopted as it stands, would there be cases of vulnerable individuals who would not be protected under Bill C-14? If so, could you give us some examples?
[English]
Mr. Bach: Thank you for the question.
We're concerned about people who may be induced, like the direct coercion that I spoke about, where a man was given the choice of either long-term care or assisted suicide in Oregon. That spoke to a family caregiving situation, a family that was stressed and burnt out. Our concern is that the two medical professionals identified in Bill C-14 don't necessarily have the expertise to address that issue.
Surveys in the U.S. indicate that only 2 per cent of physicians have any experience or expertise in seeing the signs of elder abuse. Elder abuse is obviously going to be a huge concern in this system.
That's why we've proposed in our amendment, in the brief we've given you, that getting a vulnerability assessment is essential. If those two medical professionals could require that a palliative consultation has to be done as part of that, our understanding is that palliative physicians can bring a much broader expertise.
I appreciate the amendment of our colleagues to an assessment that would ensure that a full range of options has been assessed, not only the medical options, but the social and psychosocial options to address people's suffering.
Senator McIntyre: Thank you all for your presentations.
Mr. Bach, in the brief submitted to this committee by your association, it is recommended that six specific amendments to Bill C-14 be made. In one of your recommendations, you call for a prior review of medical assistance in dying by a Superior Court.
Earlier in these proceedings I raised the issue of judicial authorization with the College of Physicians and Surgeons of Ontario. I have to admit that they were not very receptive to this idea, although such a system has been in place since February of this year and will remain in place until June of this year.
May I have your thoughts on this, please?
Mr. Bach: I think it's very interesting that the Supreme Court saw fit to require judicial authorization, rather than simply having two physicians make the determination in the interim period. Certainly the Supreme Court seemed to think that judicial authorization fit the reasoning of its original Carter decision.
We've also supported the work by David Baker and Gilbert Sharpe, who have presented a draft bill for prior review and detailed amendments to the Criminal Code, and would be supportive of that.
We just think that a physician's job is to examine the causes of suffering and to provide options for people to consider, not to authorize the intervention that is intended to bring about the termination of someone's life, and that we should separate that out in order to protect the integrity of the health care system.
Senator Batters: Thank you very much all of you.
There have been a couple of references in this particular panel to Oregon. I want to bring to the attention of those who may be tuning in or listening to these proceedings that, in Oregon, their legislation requires that a person have a terminal illness and also be at the end of their life. Currently, this bill doesn't provide either of those things, so it is sort of amplified when you look at that example.
To Mr. Bach, in one of your suggested amendments to this legislation, you speak about the necessity of having a safeguard that would require a specialized counselling for somebody seeking medically assisted suicide. I'm wondering if you could tell us why you think that that is a good requirement to have here.
Mr. Bach: The set of recommendations is really driven by the requirement for informed consent that the Supreme Court was really clear about. Given the finality of this decision that requires not my right to negative autonomy, which is to refuse treatment or have treatment withdrawn, but to ask of the health care system to make an intervention intended to terminate my life, we should ensure that people are fully informed.
Given that in Canada we only have five provinces that have statutory standards of informed consent, the guidelines for practices of informed consent issued by the regulators vary across the country. We actually don't have a national standard or a national set of practices around informed consent. And the bill, as we also note, only refers to external influences, which is a much narrower standard of informed consent that the Supreme Court gave in the first place, which is that people who may be induced to commit suicide, that that inducement has to be identified and addressed.
In our view, that specialized counselling would be one of the ways in which we could establish a national standard to ensure that people are fully informed.
Senator Batters: Would that be amplified by the fact that the Supreme Court of Canada contemplated physicians, but here this bill has nurse practitioners and potentially no physicians involved in providing approval, assessing competency, and administering assisted suicide. Is that amplified by that?
Mr. Bach: Absolutely. We have a real concern that this is being driven largely by the right of access, which we respect, but the mechanisms to ensure that vulnerable persons are identified and addressed are not in place. It certainly would help to address that concern.
Senator Batters: Ms. Hutchison, you spoke about how you wanted to have "psychological suffering'' stricken from the bill entirely. I agree with you; I've advocated for that for some time. You also discussed problems with the preamble. I find it problematic that the preamble is the only place that specifically refers to having psychological suffering as a sole basis not included as a way to access physician-assisted suicide currently. Would that be a concern to you as well regarding the preamble?
Ms. Hutchison: Can you just repeat that part of the question?
Senator Batters: You talked about having "psychological suffering'' stricken from the operative provisions of the bill. I've noted in past discussions that I've had about this bill that I have a problem with the fact that the only place in the entire bill that specifically refers to "psychological suffering'' as the sole basis for accessing medical-assisted suicide is in the preamble and not in the operative parts of the bill. I think that could lead to a conclusion that somebody could access physician-assisted suicide solely on the basis of psychological suffering, because it isn't in the operative provisions of the bill. Is that your concern as well?
Ms. Hutchison: Yes, because I actually thought from the preamble that it wasn't, and then I saw in the operative part that it was. I would like them to be consistent, and I would like it out, yes.
Senator Batters: Absolutely, to be totally clear.
Senator Joyal: Welcome.
I am wrestling with your proposal to specifically include the offer of palliative care as a precondition for a person to decide if he or she is entitled to physician-assisted death, especially on the basis of your testimony and information that is available generally to the Canadian public that less than 10 per cent of Canadians will have access to palliative care. In other words, if we, in practice, give way to your proposal, it would mean that we would restrict physician-assisted dying to only 10 per cent of Canadians.
I totally support the objective of the extension of palliative care, but to me it's more a social policy that should be introduced into the Canada Health Act than into the Criminal Code. What we're doing here is amending the Criminal Code. If we are to put in the Criminal Code that the existence of palliative care has to be available in any region of Canada, a major urban centre or the most remote part of the country, we will restrict the exercise of the right to an extensive point that, in my opinion, it would be unconstitutional. It would be found wanting in relation to the way that the Supreme Court has unanimously interpreted section 7.
Dr. Branigan: The amendment, as we recommended it, was not intended to block access. The 10 per cent number you have is probably not correct and speaks to the fact that we have very poor data. Again, it reinforces the need for a national secretariat.
I think Dr. MacDonald was pointing to the fact that there can be different ways of connecting than necessarily having a specialist in front of you.
The point is, do you want a bill that doesn't have that? Basically you're saying if it's not available, then we say it's okay as an alternative to saying, "I don't have palliative care, my family is not supported, I'm feeling like a burden, so a hastened death sounds like the best option to me.'' Is that what you want?
Senator Joyal: That's not what the Supreme Court, respectfully, has said. The person has to suffer from grievous and irremediable condition and bear suffering that is intolerable to them. The criterion is not "you're sick of life.'' One day I might be sick of life, but I'm not suffering from a grievous, irremediable and intolerable position. I don't think we should stretch the criteria too much.
Dr. Branigan: I'm not saying we stretch it. The concept of burden is a very big reason that people in other jurisdictions are granted access to hastened death. For some people, it is grievous and irremediable that they may require assistance for toileting, within context. If that assistance is being provided by your family because you don't have access to services, that can directly influence whether you make that request and you don't see that there is another option.
I understand your concern. You don't want it to be something that means that it's just not workable, but we need to start gathering data and finding out if this is behind some requests, because that's clearly not what we want.
Senator Joyal: As the bill proposed, and as the special joint committee proposed in its report in February, if two doctors have to examine the capacity to consent and come to a conclusion about the grievous and irremediable physical or mental condition of the person, and then that the person is in a condition of intolerable suffering, the social pressure of the family is not an element that the doctor has to weigh before concluding that that person has a right to physician-assisted death. The second doctor will have to go through the same exercise.
Again, as much as I am in support of palliative care, mixing the two here is, in my opinion, a line that is very difficult, personally, for me to cross.
Dr. Branigan: Let's phrase it this way: How can it be a voluntary request if you don't have access to an alternative?
Ms. Hutchison: I fit the clinical definition of the criteria for this intervention. I actually gave my first presentation to the joint committee from the hospital.
In the time that it has taken for the committee to make its recommendation and draft the measures for this legislation, I still have not had even one service since my discharge from hospital — not one service. That's what the problem is.
And the solution is not to kill me, sir. The solution is to provide the services. I will not go down. I will not die. I will live. I will live. I will choose life, and I will not be considered revolting.
An Hon. Senator: Hear, hear.
Ms. Hutchison: I will not be considered undignified.
It is my husband who sits in this room that provides the very care, and sometimes when I —
The Chair: I gave you limited time.
Ms. Hutchison: No, I understand that. I have one line.
Sometimes, in other circles when I do have to describe in detail what does happen, I'm sometimes told, "Oh, that's disgusting. You mustn't say that in public.'' And I can't even describe, because we are limited for time, what we do need to go through. The solution isn't to kill us.
The Chair: I'm sorry.
Senator Joyal: Nobody suggested you should be killed.
The Chair: We can't let this kind of conversation go on. We have other senators who wish to ask questions.
Senator Lankin, please.
Senator Lankin: Thank you very much.
Mr. Bach, I want to pursue the recommendation for prior review. We had the exchange earlier, as you heard, to physicians who are saying, "Well, this is not a legal determination; this is about medical. Let's medicalize this and not legalize this.''
It's interesting that you refer to Gilbert Sharpe, who was for many years head counsel for the Ministry of Health in Ontario and was very central to the development of the consent to treatment regime there, including a specialized tribunal determination of capacity to consent and provisions for informed consent.
I have a gut reaction that says that I don't think we should be going to the courts on this all the time, but I'm interested by this recommendation of a more specialized review tribunal that would probably draw on medical expertise and other expertise.
Could you briefly, because we don't have a lot of time, describe what that might look like and how you think it fits in with the current consent to treatment, which I acknowledge is different in different provinces?
Mr. Bach: I think the tribunal in Ontario, the Ontario Consent and Capacity Board, is exactly the model that Gilbert Sharpe had in mind.
I won't speak for him. It's certainly the model we had in mind and it's an excellent example.
A tribunal requires three people — a physician, a lawyer and a public member, and there is a roster of them — to consider applications where consent capacity may be at issue.
In the last annual report, 2014-15, they heard 6,500 applications and they adjudicated about 55. They are required by law to issue decisions within seven days. In speaking with members of that Consent and Capacity Board, they've issued them in emergencies within 24 hours.
They work by video to ensure that rural and remote areas can be served, so it is a model in terms of the number of applications considered in Ontario. I hope we're not considering more than 6,500 a year in Ontario — we might be — and being able to turn it around quickly.
With all due respect to our colleagues from the colleges, this isn't just a medical decision because the ban wasn't struck down. This is a Criminal Code exception to the ban on assisted suicide. It is an exception in the Criminal Code, and we think that requires some judicial oversight to ensure that the criteria have been met to justify an exception in an exceptional circumstance to the ban.
The Chair: I thank you all. I want to apologize for interrupting a number of you on occasion. We all appreciate your passion on this subject, especially you, Ms. Hutchison, but we are operating under some very challenging timelines. I certainly hope you appreciate that.
Thank you for being here and assisting us. It is very much appreciated.
For our final panel today, we have joining us, from Dying with Dignity Canada, Dr. Arnaud Painvin, Member, Physician Advisory Council. From the Alliance of People with Disabilities in Carter v. Canada, Margaret Birrell, President; and Angus Gunn, Legal Counsel, who are joining us from Vancouver by video conference. And we also have with us Léa Simard. Thank you all for being with us today.
Doctor, I gather you are going to lead off with your opening statement.
Dr. Arnaud Painvin, Member, Physician Advisory Council, Dying With Dignity Canada: Thank you, Mr. Chairman. On behalf of Dying With Dignity Canada, we would like to thank the committee for this invitation, and I would be happy to answer any questions in French, too, if there is a need for it.
I would like to start with my conclusions. The number one point is that Bill C-14 is very restrictive and therefore does not respect the clear directives of the Supreme Court in the Carter case, the directives that the Crown should follow.
Number two, Bill C-14 is discriminatory in many areas and, de facto, is not compliant with the Charter.
Number three, much of its wording is vague, unacceptable and prone to painful confusion from patients, health care and legal providers, especially regarding the time frame of the disease and timing of the decision.
Number four, there is no mandatory two- or three-year review of the law based on public demand.
Bill C-14 is unacceptable discrimination with restrictions in three main areas. Bill C-14 defines disease as "incurable.'' However, the Supreme Court qualified the medical condition as ". . . does not require the patient to undertake treatments that are not acceptable to . . .'' her or him. There is a big difference between the wording of Bill C-14 and the directive of the Supreme Court.
This is an unacceptable discrimination and restriction, since Bill C-14 is excluding patients with serious and irremediable medical conditions who do not wish to undergo further treatment such as, for example, chemotherapy or radiation for their painful physical and mental side effects. In other words, Bill C-14 says if you do not accept proposed treatments, you cannot request medically assisted death. This section is also not compliant with the directive of the Supreme Court.
The proposal from Dying With Dignity Canada is to remove paragraph 241.2(2)(a) and replace it with: "they have a serious illness, disease or disability that is irremediable or for which there is no treatment acceptable to the patient.''
Regarding mature minors, the bill should consider minors suffering from chronic and irremediable conditions and requesting medically assisted death. In my practice, I saw many children at the SickKids hospital in Toronto suffering from end-stage disease and requesting end-of-life treatment. Criteria for selection should be based on informed consent, mental competency and maturation, and not based on age.
There are examples of medical assisted suicides in Belgium and the Netherlands.
Bill C-14 is prohibiting the use of advance request for medically assisted death. This rule is discriminatory since it denies access to assisted dying for still mentally competent Canadians suffering from dementia or other chronic degenerative conditions such as Huntington's disease. If they were to become mentally incompetent, they would not have access to the service.
We recognize that advance request is a very complex issue and needs to be extremely clear in order to answer the questions when, who and how to impose the pre-existing request of a person now debilitated.
Advance request for medically assisted death exists in Belgium, Netherlands, Luxembourg and Colombia. The proposal from Dying With Dignity is to remove paragraph 241.2(2)(b) and include a section related to advance request.
The bill is unacceptable regarding restriction and discrimination regarding time frame. Bill C-14 states: ". . . advanced state of irreversible decline in capability . . . .'' This wording would impose years of severe, unwanted physical but mostly mental suffering upon patients who have irreversible debilitating chronic disease such as multiple sclerosis and ALS. Those patients may not have reached the end stage that is unpredictable and may be for a long duration. As a result, the wording risks violating the Charter with regard to right to life, liberty and security of the person.
The Chair: I'm going to have to ask you to sum up, please.
Dr. Painvin: We consider Bill C-14 discriminative in many areas. We consider Bill C-14 very restrictive; therefore, it does not reflect the direction of the Supreme Court. We would like to have a mandatory two- or three-year review of the law based on public demand.
The Chair: Thank you, sir.
We will now move to Ms. Birrell and Mr. Gunn. Please proceed.
Angus Gunn, Legal Counsel, Alliance of People with Disabilities in Carter v. Canada: Thank you for the opportunity to appear before you this afternoon.
Before you, on your right, is Margaret Birrell, who is president of the alliance. My name is Angus Gunn, and I have served as litigation counsel for the alliance since 2011.
We understand that you may have copies of our written brief. I have been asked to provide some prepared remarks this afternoon that focus on just two of the amendments suggested in that brief. Neither of those amendments was accepted by the House of Commons standing committee, but the alliance brings them to this chamber of sober second thought in the hope that they may find greater purchase. Ms. Birrell will be pleased to respond to any questions the committee might have.
The first amendment is to restore the efficacy of advance directives. Bill C-14 does not take up the special joint committee's recommendation that the use of advance directives be permitted. The Charter rights of those who suffer from dementia are no less deserving of protection just because their enduring and intolerable suffering results from an illness that also robs them of decision-making capacity.
The government has provided two rationales for excluding advance directives, and we say that neither withstands scrutiny. First, it is said that they generally do not provide reliable evidence of a person's consent at the time that medical assistance in dying would be provided. Secondly, it is said that disallowing advance directives would guard against the effects of inaccurate assumptions.
But advance directives do provide compelling evidence of a person's consent while the capacity to give consent remains intact. Dementia ultimately destroys the capacity to give consent. To insist upon it at the time of medically assisted dying is to require the impossible.
Are there really individuals who decide that they would rather die than weather the storm of, for example, Alzheimer's but then later change their mind because Alzheimer's isn't so bad after all?
Even if those people exist, why should their vulnerability trump that of the thousands of individuals whose wishes have not changed but whose illness robs them of the ability to confirm that fact?
Why is the blanket ban that was rejected in Carter for sufferers of ALS acceptable for sufferers of dementia?
If a competent individual makes an informed decision that, at a certain stage of decline, the quality and value of life will have degraded to a point where medical assistance in dying is desired, why on earth is that decision not entitled to respect, and who is the state to discard that decision as reflecting inaccurate assumptions?
Excluding advance directives, even during six months of further study, will negate the Charter rights and cause needless suffering for thousands of Canadians. The alliance urges the committee to restore the efficacy of advance directives in relation to medical assisted dying.
The second amendment that we urge upon the committee is to remove the requirement that death be reasonably foreseeable. Bill C-14's requirement for reasonable foreseeability of death is not Carter compliant; witness that Kay Carter herself suffered from the non life-limiting, non-terminal disease of spinal stenosis.
The government tries to defend this requirement from a policy perspective, but Carter established a floor of constitutional protection, and the least that Bill C-14 must do is implement that floor. No policy rationale can legitimately derogate from that constitutional minimum.
In any event, we say that the government's policy rationales are already served by the many other elements of the Carter test.
The controversy over whether Ms. Carter could have won in the litigation but be ineligible under Bill C-14 illustrates another problem with this provision. Canadian criminal law adheres to the principle of certainty: prohibited conduct must be fixed and knowable advance.
Canadians should not have to guess about the criminality of their actions based upon a case-by-case application of concepts with no settled meaning, such as "reasonably foreseeable'' and not too remote. We urge the committee to remove the requirement for foreseeability of death.
We thank you again for the opportunity to participate in the important work of this committee.
The Chair: Thank you.
For the final opening statement, Ms. Simard.
[Translation]
Léa Simard, As an individual: Good afternoon. I am going to tell you the story of my mother, Louise Laplante, who died on March 13. It will be difficult for me to talk about because it is very emotional. She starved herself to death over four days at the home where my sister and I live because Canada could not offer her medical assistance in dying. She had multiple sclerosis and the legislation in Quebec does not allow for medical assistance in dying because she was not at the end of life. What I hope for, by testifying here, is that in my country, Canada, we will be able to remove the criteria of reasonably foreseeable death, which is too vague, and that takes away hope from many people who will not necessarily die quickly.
Quebec has already adopted legislation that is a little restrictive. What I am also seeking today is to try to remove restrictive details, especially for people like my mother who have a degenerative disease. My mother's suffering was constant, and she no longer had a quality of life. Her life was nothing but suffering, but she was very aware and lucid. After consulting many doctors who wanted to help her, they all agreed that she met several criteria, but that she was not at the end of life, according to the Quebec legislation.
However, in analyzing the Canadian bill, I was sad to see that my mother would not be entitled either, like Ms. Carter. We had to go through this experience because our country does not allow us to respect the will of a person whose life has ended, who is suffering enormously and consciously. After several examinations, it was agreed that she was suffering too much, but that it was not possible to respect her wish to leave her body behind.
I am here to testify to put a little humanity into this committee's study. I lived through this, and many families will continue to live through this if Canada does not amend Bill C-14. In everyday life, if people are not very aware of what is going on and they hear about this bill, they are glad because they think it might help people. However, when we look more closely, we see that, once again, we will need to find open-minded doctors and, once again, the doctor will have to assess the criteria of "reasonably foreseeable'' death. So if we are working with doctors who are afraid — and almost all of our doctors were afraid — they do not know what to do. We need to remove the threat hanging over doctors. I hope there will be an information campaign on this legislation. I hope that doctors will be made aware that they do not have to fear helping anyone to die. We often felt this fear when we asked for help because the doctors were too afraid to help us. This threat that hangs over their heads is unbelievable, and I truly hope it will be removed so that doctors can help certain patients and respect their will, like in the case of my mother, who suffered greatly, but who was lucid and whose death was not foreseeable.
So she had to go to Switzerland or to a country other than Canada to get access to medical assistance in dying, or let herself starve to death. It is unbelievable. I cannot believe that in 2016, here in Canada, the legislation is not more open so that people with incurable diseases who are experiencing unbearable suffering cannot get help to die with dignity. Thank you.
[English]
The Chair: Thank you very much. We'll move to questions now, beginning with the deputy chair of the committee, Senator Jaffer.
Senator Jaffer: Thank you to all of you for your presentations.
Ms. Simard, I want you to know that we heard you very clearly, and through our deliberations we will certainly be thinking very much on what you said. Thank you for sharing such a difficult issue with us. It's not easy, but we appreciate it.
I have a question for Ms. Birrell and Mr. Gunn on advance directives. I know when you spoke in the house, if I understood you correctly, you said the issues of mature minors and mental illness need to be studied a little further but that advance directives have been studied sufficiently, and there are examples from the Netherlands and Belgium.
How would you envision a system of advance directives working in Canada when informed consent can no longer be given without further study?
Ms. Birrell: First, it has to be in the act. It has to be secure within the act. We have advance directives in B.C. and a representation agreement. However, it's not about assisted dying; it's about your choices of your health care.
Under the system in B.C., I've been involved in several cases, and so I think the models are there. We don't need a lot of time to put in the advance care directives — for the individuals to sign what they want, it is written down. It is verified and it is final. When they want to implement — no pressure from anybody else — and want the assistance, then it should be granted.
Senator Jaffer: Dr. Painvin, in your brief you said that not having advance directives is discrimination, especially against people who have degenerative conditions. Could you expand on that, please?
Dr. Painvin: Yes. I'm taking an example here. Suppose I've been diagnosed with the beginning of Alzheimer's. I have memory problems, but I am still extremely competent mentally. I decide to sign my request for medically assisted death one day. Of course, I don't know when. Suppose that 20 years later I'm becoming competent. The problem with advance directives is the following: When to decide to enforce my directive, who will do it and when. Those questions are extremely difficult.
When we look at the literature in Belgium, the Netherlands, Luxembourg and Columbia, all of them have advance directives for medically assisted death. There are two criteria: when the patient is in a coma; and when the patient cannot communicate any more. It looks like those two criteria are used to enforce the decision of the patient who decided 20 years before to have medically assisted death.
The problem is extremely complex, absolutely. We at Dying with Dignity Canada believe we should look at that. This is critical and yet extremely challenging to write into law — extremely difficult.
Senator White: My condolences, Ms. Simard. Thank you all for being here.
Doctor, I want to focus on under 18 years of age. What parameters would you put on a youth? I think you talked about which ones you don't agree with. Can you explain how that would work otherwise?
Dr. Painvin: I saw many kids suffering from end-stage disease, and kids even at 12 years old were very mature. I don't think it would be a mistake to use age as a criterion. Using age will be very arbitrary, because we have kids of 14 years of age who are extremely smart and understand well their disease and the prognosis of their disease. People talk in Canada about having it be 16 years or 17 years or 15 years. In Belgium, for example, it's 12 years old. In the Netherlands it's 12 years old. How they came up with this number, I don't know; but it's pretty young.
My answer to you, senator, is that we should avoid age and look at the maturity of the kids for their reaction to their disease and listen to them.
Senator White: As you know, we have a lot of legislation in this country that pertains specifically to age because we believe that young people often aren't at a specific place in their lives to make those cognitive decisions on their own. You've seen a lot of young people who have decided to stop treatment. But there's a difference between stopping treatment and taking their lives, or assisting them in taking their lives. I can't square the circle on a child making the decision to end their lives regardless. Adults are there to protect them.
You're not saying there's any right age. You're saying to let medical personnel deal with a 12-year-old and make that decision with them. Is that what you're suggesting?
Dr. Painvin: It's extremely difficult. I saw many kids, extremely young, knowing very well the prognosis of their disease. Yes, 12 years old sounds extremely young. It's not up to us and it's not up to me to tell you what age it should be. I strongly believe that Canadian minors should be able to have access to medically assisted death as long as they are mature enough and are very well informed. That's the only thing I can tell you. Whether it's 16, 17 or 18 years old, I have no answer.
Senator Baker: Thank you to the witnesses for their excellent presentations. I have to say that I completely agree with the presentations as far as advance directives are concerned. Could you verify for the committee a fact about advance directives? Dying with Dignity Canada suggests advance directives in all provinces, with models and so on.
As I recall the nature of advance directives, on the last page is a very long survey, the last item is: If the hospital doesn't agree with my directive, then I hereby wish to go to another hospital. Above that is: If the care giver does not agree, then I wish to have another caregiver. At the top of the page, there's a key section that says in the first part what you refuse, i.e., you may refuse life-sustaining measures; and then it says what you accept. The first thing there, which strikes me, is medication to relieve pain that may cause the hastening of your death. It's in the advance directive today in Canada in every single province. So I can't see why there is an objection to having advance directives covering this bill. Could you verify that that is actually in your suggested advance directives for Canadians to have today?
Dr. Painvin: I will do that.
I worked 32 years in intensive care. We all know that the use of medication to ease pain is used frequently to activate the process, so that's probably what you are referring to.
Senator Baker: Even though it will bring on my death; it is there in black and white, that you are signing.
Dr. Painvin: As a physician, I would never accelerate the rate of morphine in order to kill a patient. That's not yet acceptable.
Senator Baker: You must abide by the advance directive. The law says that.
Dr. Painvin: Absolutely. But, senator, there's a problem with advance directives. It's not just about medically assisted death; it's about advance directives in general. Do you want intensive care? Do you want ventilation?
The problem with that is who is going to have access. If I am in a car accident alone, I end up in hospital and I have my advance directives somewhere, how will the health care providers have access to them? How will the paramedics on the road tube me and start CPR on me? If I refuse, they have no way of knowing that I have an advance directive.
At DWD, we are thinking about some sort of card that you have in your wallet, and the paramedic, by law, will have to look at your advance directives. Otherwise, if nobody looks at your advance directives, there are no advance directives. The problem of advance directives for conventional care or for medically assisted death is a very complex issue.
I would like to say one thing here, senator. Bill C-14, for us at Dying With Dignity — and for many Canadians — is a huge surprise because it does not respect the directive of the Supreme Court of Canada. It's clear.
Number two, for obvious reasons, the bill is restrictive for political reasons. They want the bill to pass, especially with a free vote.
So we have a big problem with it. The bill has to be amended. If not, it will be challenged in court immediately. The first case will be challenged in court. The judge will look at the bill, will look at the Supreme Court, and the Crown will lose.
[Translation]
Senator Dagenais: Ms. Simard, I would like to thank you for testifying today. To help us, within the committee, to understand what families like yours go through, I would like to know when your mother made her decision, in what environment, what advice she was given, if any, and to whom she spoke about her concerns. I will end my question with this: from a family perspective, was there unanimous agreement?
Ms. Simard: I will start with the last question. Yes, it was unanimous. She had been talking to us about it for many years. Since she was a spiritual person, she was not afraid of death, and neither were we. She educated us about this.
She had been diagnosed 15 years previously and, in the past five years, her situation deteriorated after she fell and broke her hip and clavicle. She ended up in a wheelchair. There was a serious decline in her situation after this, especially in the six months before her death.
She received home care through the CLSC where she lived, in Longueuil. It was enough for her because she wanted to maintain some independence. She was a very strong woman, and a very solitary person, too. She preferred receiving as little care as possible and staying at home. We were quite satisfied with the care she received at home. However, the situation became worse and worse, to the point that she was very afraid at night. There was no care or visits at night. So she would be 12 hours without visits or care, and the situation became impossible.
So we met with a social worker to try and get an intermediate resource, but things did not work and, after an assessment, we were referred to a residential and long-term care centre, or CHSLD. Moving in to the CHSLD was the turning point in her decision. It was hell for her, at 66 years of age, to be among residents who were on average 85 years old, and who were not at all there. These were atrocious conditions for someone who was solitary, independent and who, all of a sudden, became totally dependent, in an environment she hated.
As an aside, my mother was vegetarian. She ended up at the CHSLD with menus that did not accommodate her at all, with very brusque ways of doing things and occupational biases. People treated her like a deaf little old lady. It was hell. It was exactly what pushed her into her decision.
She thought about going to Switzerland, but she did not have enough energy to make the trip. In considering all these factors, what solutions did she have, without our being incriminated? She would have to die of hunger. She wanted to make her own decision and be the master of her own death. The only way to do that was to deprive herself of food and water.
[English]
Dr. Painvin: May I say something, as a physician? People who try to die by stopping to eat, it takes three weeks; stopping to drink takes a few days. The word "incurable'' in Bill C-14, if this word is not removed, we are going to see Canadians still doing that. This is just totally unacceptable.
[Translation]
Senator Joyal: Ms. Simard, at what point did you contact a doctor to request medical assistance in dying which, in your opinion, should have been available in the circumstances?
Ms. Simard: Her family doctor, the treating physician, was made aware. She was very open. We were very pleased to have this relationship with her. She was certain that my mother was eligible under the Quebec legislation. After speaking to two or three colleagues, she realized that the end-of-life criteria came first and that, if it was not met, it was absolutely impossible to help the person in that process. We were disappointed because for at least three weeks, we thought that Quebec could help us, given that her family doctor had encouraged us to do it. In the end, it did not work out.
We started looking into going to Switzerland, but her energy dropped and her condition worsened, so we gave up on that. When she entered the CHSLD, she had a new treating physician. We spoke to him and asked him questions. The dialogue was very open. We spoke about her desire to die, to leave her body, to end her suffering. The doctor heard her very well, but he did not know what to do. Once again, he contacted two or three colleagues at the Pierre-Boucher hospital, next to the CHSLD, but he remained without resources, answers or help.
Finally, he let us go home. We then asked to bring my mother home so that she could go through with her plan to stop eating, because she could no longer tolerate being in the care centre. No physician, no help, no health professional had any solution for us. They just wanted to improve her quality of life.
When you are suffering like her, when you no longer get any pleasure from life, having an ergonomic cushion on your wheelchair changes absolutely nothing. Having an occupational therapist come to make you do exercises for your shoulder or neck pain, pain that gives you a headache 24 hours a day, no longer serves any purpose. Their suggestion is to improve the quality of life. But there is no quality of life left, so there is nothing to improve.
When a lucid and conscious person asks to be released from her body and, when, after examinations and studies by professionals, it is understood that the person is not in a depressive state, that it is not about suicide, it is about assistance in dying and being free of her body, the case must be evaluated in that light.
Senator Joyal: She died from hunger and thirst?
Ms. Simard: Yes.
Senator Joyal: Or, considering her condition, did the doctor just —
Ms. Simard: No, he let us go home. We left the care centre and we put her in a room in my sister's house. My sister and I were at her bedside in a little room for four days as she carried out her plan to stop eating in order to end it all. People in those situations are just waiting, they are dependent on everyone and they can decide nothing for themselves. They have no energy left, they have no mobility left, they have nothing left. They are dependent on everyone around them.
We could not even ask our mother to give us two or three days to find a solution because she needed to get out of there immediately in order to start her plan. She had reached her point of no return, it was over for her, and we could not convince her otherwise. We did not want to convince her otherwise, because we agreed that she was suffering too much for her to go on living.
[English]
Senator Plett: Mr. Painvin, in response to Senator White's question, you referred to the Netherlands and Belgium, and I have something I want to read from testimony that we have heard:
If what occurred in the Netherlands and Belgium were to be normalized in Canada, the figures that we could expect, taking the same figures as those in the country, would be approximately 9,000 deaths a year.
In the Netherlands, the term "psychological suffering'' enabled a healthy 63-year-old man to die by euthanasia because he could not face the prospect of retirement. The clinic's evaluating psychiatrist said the man:
. . . managed to convince me that it was impossible for him to go on. He was all alone in the world. He'd never had a partner. He did have family but he was not in touch with them. It was almost like he'd never developed as a person. He felt like he didn't have the right to live. His self-hatred was all consuming.
He didn't have any physical problems, just psychological.
Another individual meeting the psychological suffering in Belgium, who was offered assisted suicide, was a 54-year- old woman with a pathological fear of germs.
Do you consider Belgium a success regarding the legislation that they have?
Dr. Painvin: No, senator, I don't. That's why the safeguard has to be extremely precise. In the examples you are giving, I would say that that is a lack of professional assessment of the patient by the physician.
Senator Plett: You support lowering the age — you call them mature minors; I call them children — bringing the age down, again, as in Belgium. I think you said 12 years of age, maybe 11. I'm not sure. Did you say 12?
Dr. Painvin: Yes.
Senator Plett: Part of the preamble says that the government is considering just mental illness as a sole underlying medical condition. So mental illness as a sole underlying condition and then add 11-year old and 12-year-old children; we would have had 15 deaths in Attawapiskat a few months ago if that was the case here.
How can simply mental illness and then children be a determining factor? If, at least, it were a medical illness, but mental illness and then children? I can't square that box.
Dr. Painvin: Senator, as far as minors are concerned, they would have to go through a very professional psychological and psychiatric evaluation by an expert, a pediatrician in this field. I'm not talking here about people who are depressed. This is very different.
When I mentioned 12 years old in Belgium, I'm not saying that we should adopt this number. This is just an example.
Senator Plett: I hope if we have the cards that you suggested, I can have a card that says, "Please don't kill me if I have an accident.''
Dr. Painvin: Yes, sir.
The Chair: Ms. Birrell, we have a minute if you or Mr. Gunn wanted to respond to that comment.
Ms. Birrell: I think that we are putting more blocks in our way to help assisted dying. Advance care directives can be done by the individual deciding when they would like to go, and that gets documented. It is then triggered when the person wants it. So I'm talking about planning it.
I was involved in the representation agreement in British Columbia. I was part of the group that drafted the law. What happens, in that case, is individuals go to a public notary or a lawyer with one or two representatives and draw up a —
The Chair: Sorry, Ms. Birrell. I offered you the opportunity, but I can't let you go on. And you are not responding to the question. In any event, maybe we'll get back to you.
Senator Cowan: Thank you for your presentation.
Doctor, I have a question for you. We all recognize how difficult these issues are to discuss, even without the kind of personal experiences Ms. Simard has experienced. There is a lot of talk about the deadline of June 6 and how we have to get it done; even if it isn't absolutely right, it's better to get this bill than no bill at all. Do you have an opinion on that? Recognizing that we do have the guidance of the Supreme Court of Canada in Carter, is this bill better than no bill at all, or should we take the time to get it right?
Dr. Painvin: That's a very difficult question, senator. Since the beginning, we are going in the right direction, but Bill C-14 is not compliant with the direction of the Supreme Court. If we have a new law in June, July, because of the wording, because of the restriction of the law, because of the discrimination of the law, it will be challenged in court immediately.
So is it good? Is it bad? It's both. It's positive for the country to have a law on medically assisted death, but I believe we should have a good one. I mean, we have enough examples around the world, and we have smart people in this country to build and create a law that will be non-discriminatory and that will be compliant with the decision of the Supreme Court and compliant with the Charter. Right now, Bill C-14 does not follow the rules of the Supreme Court and the Charter.
Is it good? Is it bad? It's both.
[Translation]
Senator McIntyre: Thanks to all four of you for your presentations. Ms. Simard, that is indeed a sad story you shared. I offer you my sincerest condolences for the loss of your mother.
[English]
Ms. Birrell, I understand the difficulties people with disabilities face when dealing with physicians. Along those lines, are you aware of any legislation that exists concerning a person with a speech/language disability or communications disability?
Ms. Birrell: I think that a system has to be there if you have communication difficulty. I mean part of your disability; I don't mean deteriorating. Have that in advance so that it's very clear what the person wants. That's number one.
What was the second part of your question?
Senator McIntyre: Is there any legislation in place supporting people with a speech/language disability or communications disability when those people are dealing with physicians or doctors?
Ms. Birrell: No. There are no specific criteria or legislation. It is a case of the advocacy groups trying to get those systems in place. I think it's really important that they be there.
Senator Batters: Dr. Painvin, regarding physician-assisted suicide, this is still a rarity worldwide. I think I heard the number the other day that only nine jurisdictions worldwide allow physician-assisted suicide, and that includes a few jurisdictions like U.S. states where terminal illness and end of life is required; correct? Is it nine jurisdictions worldwide that allow physician-assisted suicide currently?
Dr. Painvin: There are the states of Oregon, Washington and Vermont.
Senator Batters: All of those require terminal illness and end of life.
Dr. Painvin: Yes.
Senator Batters: It is my understanding there are only six other jurisdictions in the world that allow this.
Dr. Painvin: Yes, but they don't use the word "incurable.''
Senator Batters: Yes, but it is the concept. It's not like we're the last ones to get on board with this in the world. It's quite a rarity still.
Dr. Painvin: Right.
Senator Batters: Dealing with the issue of mature minors, at one point in your testimony, you referred to a 12-year- old as being very mature and a 14-year-old being very smart. You've talked about Belgium and the Netherlands as allowing physician-assisted suicide for those who are 12 years old. In our situation in Canada with this proposed bill, we're not talking about a 17-year-old with terminal cancer in the last few months of his life, because this bill does not currently require terminal illness and end of life. So I'm wondering if you think that terminal illness and end of life should be required for those under 18.
Dr. Painvin: I will say yes, but the problem, again, is how you define "terminal disease.'' Terminal can be a few weeks; it can be a few months.
Senator Batters: Okay. Thank you.
Dr. Painvin: But to answer your question, the answer is yes.
Senator Batters: Also, you made a comment at one point, referring to the Liberal government now allowing a free vote for their members of Parliament on this particular bill. You seem to refer to that in a way that indicated you were not in favour of them allowing their members of Parliament to have a free vote. Is that correct, or did I mischaracterize what you thought about that?
Dr. Painvin: I wouldn't want to speak my personal opinion about that. My understanding is it will be a free vote.
Senator Batters: You made a comment, but you made it sound like you didn't think they should have a free vote on it. Is that your personal opinion?
Dr. Painvin: No. But I think that if there is a free vote, there is always a risk, especially on those issues, and the more restrictive the bill is, the more likelihood it will pass; the more open the bill, the more likely a problem will be raised. That's my point.
Senator Batters: But do you think that members of Parliament should have a free vote on an issue so fundamental to conscience as life and death?
Dr. Painvin: Absolutely. Personally, yes, but this is not necessarily the position of DWD. This is my personal opinion.
Senator Batters: So Dying With Dignity Canada doesn't think they should have a free vote?
Dr. Painvin: No, this is my own opinion.
Senator Batters: But you're also here representing Dying With Dignity Canada. Do they think that MPs should have a free vote or not?
Dr. Painvin: Yes.
Senator Batters: They do think that. Okay. Thank you.
[Translation]
Senator Boisvenu: Ms. Simard, thank you so much for sharing with us your very painful experience of losing your mother. People who come to see us often wonder how a "committee of the wise'' such as ours can deal with testimony such as yours. Speaking for myself, and for a number of my colleagues, I am very sensitive to the fact that this bill addresses the dying first and foremost; it does not address the loved ones, the victims, those suffering from illnesses that are incurable, but not necessarily terminal in the short term.
Rest assured that your message was heard loud and clear, that we are very sensitive to the issue, and that we have gained a lot from listening to you. You can leave with some peace of mind; we have heard you, and I am sure that we will consider your testimony in our discussion. We hope that our discussion will be primarily focused on your needs, as much as possible. Thank you very much.
Ms. Simard: Thank you.
Senator Pratte: Ms. Simard, thank you for appearing before us today. I would like to ask you a question, but if you think it's too personal, do not let it cause you discomfort. I was intrigued by the fact that you described your mother as being very spiritual.
When I was young, we had religion classes. The religion that we were taught, and several other religions, considered that the idea of taking one's life, of suicide, was quite wrong, and the idea of suffering was well regarded. I do not know what your mother's religion or spiritual path was, but how did she reconcile her spirituality with the idea of dying?
Ms. Simard: That is a good question. Perhaps I could answer by saying that she believed in something greater than her. She was not self-centred or selfish. She believed that at some point our mission on earth might indeed come to an end, especially when our body is making us suffer and is telling us that it is over.
I think her spirituality actually made her see that perhaps it was time for her to put an end to it all. She was not afraid to die; on the contrary, she saw death as salvation. For her, dying meant the suffering would end. I think death scares many of us, but it did not scare her.
So that bolstered her arguments; in other words, when you are dealing with a woman who is absolutely not afraid to die, who has put her affairs in order, whose entire family is aware of her decision, and whose entire family supports her, it is that much more difficult to accept that there was no solution for her other than to starve herself to death.
[English]
The Chair: Witnesses, thank you all for being with us today and for contributing to our consideration of this important legislation. We very much appreciate it.
(The committee adjourned.)