Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue No. 10 - Evidence - June 6, 2016
OTTAWA, Monday, June 6, 2016
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying), met this day at 10:59 a.m. to give consideration to the bill.
Senator Bob Runciman (Chair) in the chair.
[English]
The Chair: Good morning and welcome, colleagues, invited guests and members of the general public who are following today's proceedings of the Standing Senate Committee on Legal and Constitutional Affairs.
Today we start our hearings on the 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 officials from the Department of Justice Canada and Health Canada. As you all know, the ministers spoke on the bill during Committee of the Whole last week. The officials consequently will not be making opening statements but are here to answer any technical questions you may have about the bill. With us from the Department of Justice Canada are Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section; and Joanne Klineberg, Senior Counsel, Criminal Law Policy Section. Here from Health Canada we have Abby Hoffman, Assistant Deputy Minister, Strategic Policy Branch; Helen McElroy, Director General, Health Care Programs and Policy Directorate, Strategic Policy Branch; and Sharon Harper, Manager, Chronic and Continuing Care Division.
Senator Baker, I'll ask you to lead off questions.
Senator Baker: I have an introductory question of the officials. Without the new section of the bill that will exclude from criminal liability persons who assist in physician-assisted death, could the provinces pass similar legislation that would have the same effect of excluding from criminal prosecution anyone who assists, as those sections are in this bill — the pharmacy, a group, nurses, and so on? Or is that a matter of exclusive federal jurisdiction? I don't know if you have turned your mind to that.
Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: As a general matter of constitutional law, the creation of criminal offences as well as what the court has called "dispensation from criminal offences'' is a matter of exclusive federal jurisdiction.
Senator Baker: Now, in terms of those sections of this bill that will exclude a person from being charged with culpable homicide, is it the opinion of the department that it is necessary to put this into federal law? In other words, with the representation the department has had from doctors, nurses and so on across this country, is it necessary to have that protection in law?
Ms. Klineberg: From a criminal law perspective, the function of the amendments contained in Bill C-14 is to draw a clear line between conduct that is culpable homicide or the offence of aiding a person to die by suicide. As we know, general principles of the criminal law, which are codified in section 21, also make any person who does anything to aid or assist a person in committing a criminal offence can also be criminally culpable for the same offence. The purpose of the rules is to clearly distinguish between conduct that is culpable and conduct that is not culpable. The greatest degree of clarity that can be achieved is generally what the criminal law is seeking.
There isn't any certainty coming just out of the Carter ruling about the potential for criminal jeopardy of those who are not physicians; so I think we would take the view that the kind of clarity that stakeholders have asked for and the kind of clarity that the criminal law in general strives to create is best achieved through clear criminal law provisions.
Senator Baker: It's important, Mr. Chair, to highlight that with this law not passed and today being the deadline, we may see the provinces introduce legislation to try to accomplish what this bill would have accomplished if it had passed — the protection that is needed for our nurses and pharmacists and so on. It's important to realize that it's a matter of federal law and that there would be a void if we didn't have this bill passing with this new section of the Criminal Code.
Would you agree or disagree with what I have just said?
Ms. Klineberg: In general, I would agree with that. I can refer the committee to a case called Jorgensen out of the Supreme Court, which was about possession of obscene materials. The materials had been approved by a provincial censor board. That was raised as a defence to a criminal charge. In that case, the Supreme Court clarified that constitutionally, as we've just discussed, a provincial law or regulatory regime cannot constitutionally have the effect of exempting a person from what is otherwise an applicable criminal offence. It's only the criminal law that can do that.
There would be some uncertainty about the interaction between provincial laws and the criminal law in this case. Only the criminal law is capable of determining what is and is not permissible. Provincial laws might be something a court would consider, but constitutionally they don't have the power to be determinative.
[Translation]
Senator Boisvenu: I have a few technical questions. The first is an open question.
Does the bill really make a distinction between people or patients who are dying and whose death is foreseeable, as opposed to those who are suffering but whose death is not yet foreseeable within a specific timeframe? Does the bill make a distinction between the two?
Ms. Klineberg: Yes.
Senator Boisvenu: What kind of distinction does it make?
Ms. Klineberg: Only persons who meet all of the eligibility criteria are eligible to receive medical assistance in dying, and one of the conditions is that the person's natural death is reasonably foreseeable, taking into account all their medical circumstances. This is a condition for eligibility.
Senator Boisvenu: Does the bill define the concept of foreseeable?
Ms. Klineberg: No.
Senator Boisvenu: So, if I am a physician, I have to define what is foreseeable.
Ms. Klineberg: According to Health Canada and the Canadian Medical Association, all physicians understand this concept.
Senator Boisvenu: When the Quebec minister of health states that this principle is not medically applicable, do you consider a physician's opinion?
Ms. Klineberg: We listen to all the witnesses, of course. Perhaps my colleagues from Health Canada who have more expertise in this area would like to add something.
[English]
Abby Hoffman, Assistant Deputy Minister, Strategic Policy Branch, Health Canada: I can add only that we have heard from various parties. Some have said they believe in a relatively consistent manner that the concept of reasonable foreseeability of death can be assessed. Others have said they believe that there is some ambiguity and that there may be difficulties therefore in arriving ultimately after some experience in an absolute consistency in approach. It's fair to say that there is a difference of view in the medical community.
[Translation]
Senator Boisvenu: The term is not defined. I understand.
Now, the decision in Carter means that Parliament has a year to amend the Criminal Code or else the decision is legally applicable. As of midnight tonight, the Carter decision applies because the government has not done the work it was supposed to do.
Whether or not the bill is passed, the Carter decision applies. Will the provinces be able to adopt so-called medical directives to provide a framework for physicians' work and to meet their patients' expectations who wish to die?
Ms. Klineberg: Absolutely. They have the power to provide a framework for their practice as regards health-related statutes and rules pertaining to health.
Senator Boisvenu: So whether Bill C-14 is passed or not, that does not represent a major constraint for a province, which can decide to follow health directives that are consistent with the Carter decision.
Ms. Klineberg: Yes. I would note however that those directives have no application under criminal law.
Senator Boisvenu: I see. Now consider for example a person who is diagnosed with Alzheimer's disease today and who is given five to ten years to live. If, in his will, he expresses a wish to receive assistance in dying when he loses his cognitive abilities and memory, but the illness progresses more quickly than expected, and a year later he has lost his capacities, will double consent be required if a third party could make a decision for him?
Ms. Klineberg: Under the current wording in the bill, that would not be possible.
Senator Boisvenu: So double consent would still be required?
Ms. Klineberg: From the patient, yes.
[English]
Senator Jaffer: Thank you for being here. I could go on about what paragraph 127 in Carter says, but I'll just get to the question because time is limited.
Bill C-14's requirement of "incurable'' I believe is a direct contradiction of paragraph 127 of Carter. Why was "incurable'' put in there? I'm not asking from a policy point of view. "Incurable'' is not part of paragraph 127.
Ms. Klineberg: There are a variety of ways we can answer that question. One is that the dictionary definition of "irremediable'' is "incurable.'' To give meaning to the word "irremediable,'' which the Supreme Court did include, opens consideration of "incurable.''
Second, almost all the laws on physician-assisted dying that exist around the world require explicitly that a condition be incurable. You'll see that in the Belgian law, for instance.
Third, as the Minister of Health, I believe, said when the Senate was sitting as a Committee of the Whole last week, doctors, when they consider what condition is incurable, take into account the availability of treatments. For instance, there may be an experimental treatment that is not available to a patient based on where they live. That is a factor that goes into the medical determination of whether a condition is incurable or not.
Finally, I would conclude that the criminal law itself prohibits administering a medical substance to a person against their wishes. That is the crime of assault. The criminal law has to be interpreted consistently, as a whole. So it's not possible to interpret "incurable'' in Bill C-14, were it to pass, as though it would require a person, compel a person, to undertake a medical treatment that they otherwise don't consent to. That is one section of the Criminal Code compelling what is criminally prohibited by virtue of another section of the Criminal Code.
I think our answer would be that "incurable'' has to be interpreted in this context in light of standard medical practice. So the willingness of the patient to undertake a medical treatment is part of determining whether or not the condition is incurable.
Senator Jaffer: You did hear the testimony of a lot of physicians saying that patients would be forced to do treatments that they didn't want to, so that they could come under "incurable,'' because if there is a treatment available, then they are not incurable. But I don't have time to go into that in detail.
I have a question for Health Canada. I am very concerned about inequalities in Canadian society in terms of providing health information to help Canadians make informed decisions.
Ms. Hoffman, I have to say to you that I'm really impressed that you just now said there is mixed opinion about "foreseeable.'' If there is mixed opinion about "foreseeable,'' then you're not creating certainty. That concerns me about the inequalities in terms of the choice to die with dignity being available to everyone who suffers insufferable pain, even though the illness is not incurable, nor physical in nature. Some doctors will say death is foreseeable; some will say no. You're creating, in fact, inequalities across the country from a health point of view. I have great concerns about that.
Ms. Hoffman: I can only comment that I think almost any criteria that are applied to further elaborate what is meant by "grievous and irremediable'' will involve some judgment. I think what we cannot predict right now is whether or not that range of judgment will be very broad or very narrow.
When I was referring earlier to comments that have been made about how to assess reasonable foreseeability of death, I simply wanted to say that it is not, as you have indicated, absolutely precise, and therefore there will be some range. Is it a reasonable range? I think, frankly, that will remain to be seen. Some medical personnel have said they are quite confident that the range, while it may reflect some variability, will not be so broad as to represent, as you have implied could be the case, inequality in access to medical aid in dying.
Senator McIntyre: Thank you for your presentations. My question has to do with assisted suicide. The Senate committee expressed a serious concern about the fact that the bill allows a person to administer a substance to cause his or her death, potentially months or years after the substance has been prescribed for a request for medical assistance in dying.
Do you believe this possibility is equivalent to an advance request for medical assistance in dying? What are the possible consequences of a person keeping a prescription for such a substance, or keeping the substance for a long period of time before self-administering the substance and causing his or her death?
Ms. Hoffman: I can start with a response, and my colleagues will contribute as well. As the Minister of Health has indicated on a couple of occasions, in testimony and in other circumstances, it is currently the case that individuals, through bona fide prescriptions, have access to medications that could have quite lethal consequences, and obviously the hope for a situation is that those medications are secured in some way in their own home. But in any event, it is not unusual for people to have access, through prescription, to medications that they may use immediately or may defer using for some time.
On your specific question about receiving a prescription after an individual has been deemed to have met all the eligibility criteria and filling that prescription, so long as the individual remains competent and therefore able to self- medicate or able to request, in that very narrow allowance that is provided for in the legislation, someone else to aid them in some aspect but not actually the administration of the medication itself, as long as the individual is still competent, then I think that is the clear distinction between that sort of circumstance and an advance directive.
An advance directive would apply in a case where the individual was no longer competent to state the time and mode of their death and therefore were relying on someone else to make a judgment and to administer the lethal medication in accordance with terms that they had defined in an earlier period when they were still competent. I see these as two very different circumstances.
Senator McIntyre: The house committee added clause 9.1, which provides that the government must, in the 180 days after the bill receives Royal Assent, initiate one or more independent reviews of issues relating to mature minors, advance requests, and mental illness as the sole underlying condition. Which individuals or organizations could carry out these reviews? Would the government be bound by the findings? Would the bill be reviewed only after five years as provided by clause 10(1)?
Ms. Hoffman: Again, thank you for the question. I'm happy to give some initial comments.
I think the range of individuals and organizations who might undertake these studies remains to be determined. I think it's very clear from all of the testimony that has been heard from the various expert panels across the country, as this process has unfolded over the last year or so, that there is a considerable legacy of expertise and knowledge about these issues.
I think I'll simply say at this point that the decisions have not been made about what those panels might look like. I think it's probably fair to say that that each of these issues has its own complexities, so to ask a single panel to review all three might be a bigger task than is reasonable for a single group.
As far as the obligation of the government to act goes, I think the intent is that these studies — their terms of reference, the individuals involved and the reports that they produce — would happen in the public domain. I think, at that point, it would be up to parliamentarians to decide whether and how they wish to follow up. I suppose, theoretically, that could mean it could be in advance of the five-year review, depending on the timing of the studies and their reports, or it could be simultaneous with the statutory review. Frankly, I think that is up to parliamentarians.
Senator Joyal: Welcome to the committee. There are fundamentally differing opinions on the difficulty in giving a meaning to "reasonably foreseeable'' in the medical profession, as Ms. Hoffman recognized earlier on in response to a question. And according to Ms. Klineberg, there is certainly uncertainty as to the interpretation of what "reasonably foreseeable death'' means in the legal community and among the leading Canadian experts.
So, would it not be better for the government to go back to the Supreme Court today or tomorrow and ask the court to pronounce on the constitutionality of Bill C-14, especially on section 241.2(2)? That would leave intact the possibility for any Canadian seeking assistance in dying in the meantime to continue to go to the Superior Court as gatekeepers, as the minister said.
Then there would be no uncertainty. We would continue to allow Canadians to have access to medical assistance in dying under the criteria of Carter while the court reassesses the constitutionality of the bill. Meanwhile, the Supreme Court could come forward with a pronouncement on the constitutionality of the bill that would clear up the medical and legal uncertainty in relation to "reasonably foreseeable death.'' That seems to me to be the most logical position for a government responsible for the common good of its people.
For the past four months, the Superior Courts in every province have been testing the implementation of the Carter criteria. To extend that for another one or two months seems to me to be the most reasonable approach for Canada to enact legislation that will be sound and that will give no one cause to raise questions about its uncertainty.
Would that not, in fact, be the most preferable and most reasonable approach to this?
Carole Morency, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Thank you for the question.
I think the minister has answered the question that has been put to her, and the government's position has been that Bill C-14 is the approach to move forward with at this time. The committee members may appreciate that when a reference is sent to the Supreme Court to look at legislation, the court would typically look at how it has played out and how it has been interpreted. How have the cases proceeded under that legislation with what interpretation is given to it? At this point, a reference would not have that advantage.
As this committee will know, as well, an important way that courts deal with legislation once it has been enacted — because that's when courts will become seized with how they apply it — is to look to the parliamentary record. They will look to what the ministers have said, and they will look to what the witnesses have brought forward in terms of interpretation of these various terms. All of that goes to inform the life that is breathed into Bill C-14 once it's enacted.
I think the question suggested that perhaps there is even a possibility of having a reference done in one or two months. Others could correct me on that, but it has not been my experience that bringing something forward to the Supreme Court would require the evidence to be pulled together. There would be parties that would want to participate, whereas Bill C-14 is a process before parliament, should parliament choose to enact it at this time. The advantage of Bill C-14, once, if and when, parliament enacts it, is that it is a process that is there right away for patients to use in seeking out medical assistance in dying without having to go through the judicial application that was created as an interim measure pending the extension of the suspension.
The Chair: That's the downside of lengthy questions. I have to move on to Senator Batters.
Senator Batters: Thanks very much. Senator Jaffer earlier asked Ms. Hoffman about mixed opinion on a particular term being used in this legislation. First of all I want to ask, both to Ms. Klineberg and to Ms. Morency, how long each of them have worked for the Department of Justice. My recollection is that it has been quite some time. I'm wondering if they could provide their brief opinion on whether it's anything but the extremely rare occurrence that there isn't mixed opinion on criminal legislation in Canada.
Ms. Klineberg: In general?
Senator Batters: Yes. Isn't it the case there is always mixed opinion regarding particular terms in criminal legislation in Canada?
Ms. Klineberg: Yes. In my 20 years' experience working in criminal law policy on many different bills, I can't remember one where everyone agreed. I would also say, following up on the question that you, Senator Batters, are also following up on, that it's acknowledged there is a difference of opinion on the comprehensibility of "reasonable foreseeability of death.'' But there is, equally, disagreement on the medical comprehensibility of "grievous and irremediable.''
Physicians and the Canadian Medical Association have said those are not medically understandable terms. The federal external panel commented on this issue in its report. Their consultations found that there was a great deal of medical uncertainty around what those terms mean and that, ultimately, even those words would be interpreted according to the subjective views of the physicians involved. So yes, division in opinion and a diversity of opinions are fairly commonplace on this file in particular.
Senator Batters: Thank you. Now with today's deadline coming into place, many provinces have put regulatory frameworks into place. How many of those frameworks potentially allow for people under the age of 18 to access assisted suicide before this bill — Bill C-14 — is passed?
Ms. Hoffman: I'm double-checking, Senator Batters, but we believe there is at least one.
Senator Batters: Alberta, correct?
Ms. Hoffman: That's our understanding, yes.
Senator Batters: Are there any provinces that don't specify the particular age?
Ms. Hoffman: Sorry, we'll need to confirm that, but there is some variability as to the age being 18 or 19, as well.
Senator Batters: Okay. Are there any provinces that don't specify an age at all?
Ms. Hoffman: I don't believe so, but we'll confirm that.
Senator Batters: Okay. Do all provinces and territories have regulatory frameworks in place as of today?
Ms. Hoffman: Yes, they do. They have all worked them up, and I would say that on many of the main points they are consistent but not absolutely consistent. I believe Minister Philpott talked about this at Committee of the Whole last week.
Senator Batters: It was fairly brief, though.
Ms. Hoffman: Yes.
Senator Batters: Do any of the provincial or territorial regulatory frameworks allow anyone other than doctors or physicians to approve assisted suicide and to assess the patient's competency?
Ms. Hoffman: No, they do not.
Senator Batters: None of them do?
Ms. Hoffman: No, not at this point.
Senator Batters: None of them allow nurse practitioners either to approve a patient's consent or to assess competency?
Ms. Hoffman: I think it's fair to say that after Carter, with the reference to physicians and in fact the nomenclature that was used out of the Carter decision —''physician aid in dying'' — the focus of the bulk of the regulatory work in most jurisdictions was related to provinces. It was when the federal work, including the work of the special joint committee, introduced into the environment the idea that there may be access issues related to an exclusive focus on physicians that nurse practitioners came into play. As time went on, as well, it was quite clear that other providers might be involved in some way and would, therefore, require exemptions.
While all that was going on, most provinces and territories were focusing their work principally on physicians, as were their colleges of physicians and surgeons.
Senator Batters: Although the nurse practitioner angle has been —
The Chair: Senator Cowan.
Senator Cowan: I have three quick questions.
We talked about differences of opinion, and I guess that's normal, but you're well aware of the position that the regulators have taken across the country, in particular that the term "reasonably foreseeable'' is not a medically understood term. I understand the Canadian Medical Association thinks it is, but the regulators don't.
Why would your departments not have consulted with the regulators when you were preparing this legislation, as the evidence is you did not?
Ms. Hoffman: Can I just ask for clarification, Senator Cowan? Are you referring specifically on the issue of the reasonable foreseeability of death?
Senator Cowan: I'm talking about the consultations, generally, about the framework, the federal response and the lack of consultation with the colleges of physicians and surgeons or their governing body, at any time during the process of developing this legislation.
Ms. Hoffman: Decisions were taken about whom to consult in terms of who could be helpful. I can tell you that I personally have had conversations with representatives from FMRAC, the Federation of Medical Regulatory Authorities of Canada, the organization you are referring to.
I guess it's a question of whether light would have been shed on the critical issues in the legislation through some more formal process. We know that the medical regulatory bodies were involved: They have been witnesses in front of parliamentary and Senate processes, they were consulted during the federal external panel, and there was interaction with them during the provincial territorial panel.
Senator Cowan: I'm speaking about during the preparation of the legislation. That was a decision taken by someone else at a political level.
Ms. Hoffman: No, I would not say that. My Justice colleagues might want to comment on who was consulted.
Senator Cowan: They said they weren't consulted. I'll move on.
Ms. Klineberg, you've said this morning, and your minister said at the Committee of the Whole last week, that the terms "incurable'' and "irremediable'' basically mean the same thing; they are interchangeable. Why would you use the word "incurable'' in this legislation when the Supreme Court of Canada used "irremediable''?
Ms. Klineberg: The best answer to that question is just that it's more plain language. I don't think there's a common familiarity with the term "irremediable.''
Senator Cowan: This will be my last question.
Ms. Klineberg, you described how treatments can't be imposed on somebody, because it would constitute an assault under common law. That is the reason you didn't in paragraph (a) say they have a serious and incurable illness, disease or disability which is not capable of being treated under conditions that the patient would consider acceptable.
You chose not to use that language in proposed paragraph 241.2(2)(a), but you did use it in (c). Why?
Ms. Klineberg: Paragraph (c) was an effort to follow the language from the Supreme Court. It was to inject into the legislation this idea that treatments don't have to be taken. If we come back to the facts of Carter, they were individuals who did have incurable illnesses for which no treatment was available, and they were seeking to not have to undertake treatments that could have alleviated their suffering.
Senator Cowan: We are drafting legislation here. As I understand it, you're including it by implication. Why wouldn't you include the language in (a)? You're suggesting, really, that a patient with an incurable illness would not be required to undergo a treatment that he or she found unacceptable; is that correct?
Ms. Klineberg: There is still a policy question at core, which is that there's something fundamental about the idea that if a condition is transient and curable with minimal impact on the patient, then is that something for which medical assistance in dying should be made available?
Senator Cowan: And nobody is suggesting it is.
Ms. Klineberg: Then —
Senator Cowan: Because that would not qualify as a "grievous and irremediable medical condition,'' would it?
Ms. Klineberg: That might depend on how one defined "irremediable.''
Senator Cowan: "Incurable.'' You just said it. Same thing.
The Chair: We are moving on.
Senator Plett: Ms. Klineberg, proposed subsection 241.2(5) talks about independent witnesses, and it says:
Any person who is at least 18 years of age . . . .
(a) know or believe that they are a beneficiary . . . .
(b) are an owner or operator of a health care facility at which the person making the request is being treated . . . .
(c) are directly involved in providing health care services to the person making the request; or
(d) directly provide personal care to the person making the request.
What's the reason for that?
Ms. Klineberg: What's the reason?
Senator Plett: What's the reason for the entirety of the clause?
Ms. Klineberg: It serves many functions. One is so that when a patient is making their written request, there are some independent witnesses there to observe the fact that this request is being made and to be a check on the voluntariness of the request being made. Those individuals have to sign their names, as well; they have to attest, in effect, through their signatures to the fact that this is a request that reflects the will of the patient who is making it.
It's a safeguard against there being someone else in the room — for instance, a third party in the room — who is dictating the request to the patient.
Senator Plett: Proposed subsection 241(5), exemption for a person aiding a patient:
No person commits an offence under paragraph (1)(b) if they do anything, at another person's explicit request, for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying in accordance with section 241.2.
A person goes and gets a prescription from a pharmacist, and puts that prescription in his medicine cabinet, her purse or whatever the case may be. Then, a year and a half later, when their mental state has digressed — they are no longer properly able to make a decision — at that point, no person aiding a patient is guilty.
So a beneficiary could aid that person at that point, if mom or dad is taking too long to succumb to their illness. Why would that exemption not be in there, as well — namely, that no person with all of the criteria noted in the other subsection not be in this portion, as well?
Ms. Klineberg: I would first note that the exemption as it's drafted does require that the patient explicitly request the assistance from the other person —
Senator Plett: Not in this paragraph it doesn't. Here it says: "No person —''
Ms. Klineberg: With respect, it's in the second line:
. . . if they do anything, at another person's explicit request, for the purpose of aiding that other person to self- administer . . . .
Senator Plett: Correct, but a beneficiary can do it at that point.
Ms. Klineberg: Right, but they can only lawfully do it if they're being explicitly requested to do so by the patient himself or herself.
Senator Plett: A year and a half earlier when the person was of sound moment.
Ms. Klineberg: No, in that moment.
Senator Plett: That's not what it says here.
Ms. Klineberg: With respect, that would be the interpretation I would give it as a criminal law matter. They're not committing an offence if they do anything at another person's explicit request for the purpose of aiding that person to self-administer the substance.
Senator Plett: If a beneficiary does this without that person's explicit request, there is no witness later to say that it was not that person's explicit request, is there?
Ms. Klineberg: That's correct.
Senator Plett: So why wouldn't you simply put that in there as well?
Ms. Klineberg: I could give the same answer to that hypothetical, which would be that there wouldn't necessarily be in some circumstances —
Senator Plett: Except there're two independent witnesses over here, so there would have to be more than one person.
Ms. Klineberg: An answer to that question might be that in the reality of the circumstances, where the patients have the substances at home for them to self-administer, if additional limitations are placed on who might be able to help them, it might create an actual physical barrier to that person being able to go through with what they had decided.
Senator Plett: Heaven forbid we want to make it too easy.
Senator Marshall: Could you elaborate on clause 11 of the bill, which refers to clauses 4 and 5? It appears there's going to be a delay in bringing clauses 4 and 5 into effect. This is the regulatory framework, which I see as very important because it's going to monitor each case that's been provided with medical assistance in dying.
Can you give us the rationale as to why there's going to be a delay?
Ms. Klineberg: The regulations containing the power created for the Minister of Health for the purpose of monitoring those regulations have not yet been developed. All the rules surrounding the monitoring regime will be brought into force only when those regulations are developed.
For instance, there are legal obligations on physicians, nurse practitioners and pharmacists to provide information to the body that will be tasked with monitoring. Those legal obligations should only come into effect when the regulations are also ready.
The whole regime is delayed until the development of the regulations.
Senator Marshall: Is there not a concern that we're going to start providing medical assistance in dying and that the information that should be monitored will not be consistent from jurisdiction to jurisdiction? We heard earlier that each province has a regulatory framework. It covers a lot of important information, like who is requesting it and why and what's going to happen to the information. In the absence of that protocol being defined, is there not a concern that those who request assistance in dying actually have met all of the criteria? I'm concerned about vulnerable people who don't meet the criteria being given medical assistance in dying.
Ms. Klineberg: Our colleagues from Health Canada might wish to provide some information about the activities of the Minister of Health on this.
Ms. Hoffman: We are in regular contact with the provinces and territories on this specific issue. We know that at the present time plans and forms have been developed that will cover off basic information on medical assistance in dying — situations that occur in every jurisdiction.
We're at the point where we are also discussing with them the additional information that a few provinces and territories would ask now based on their own guidelines; but the purpose of those discussions is actually to arrive at the point where we get a much more robust set of information, including hopefully some qualitative insight about particular administration of medical assistance in dying. That more robust system will eventually be codified in regulations.
For the moment, pending passage of the bill, we are involved in developing this interim system that will collect, admittedly, somewhat less information than we'll have access to down the road.
Senator Marshall: When do you expect clauses 4 and 5 to come into force? Is there a date? Will it be several years, or can you give us a time frame?
Ms. Hoffman: I can't give you an exact time frame. Thinking about the two or three critical stages, one is coming to an agreement on what is the information that should be collected and the means for it to be collected going through the regulation-making process. We are anticipating 12 to 18 months as the time frame for putting a system in place.
In the meantime, I don't want to leave you with the impression that this interim system is haphazard and a patchwork of information. We fully expect that information will be collected in each jurisdiction that will be rolled up and reported on a pan-Canadian scale.
Senator Marshall: I'd like to finish up by saying that a number of senators have indicated that they are concerned about the consistency with the definition of "reasonably foreseeable.'' I would also be very concerned about the consistency of the regulatory framework that's within the provinces.
Senator Pratte: Ms. Klineberg, I'm still struggling to understand exactly why you chose to use the word "incurable'' to add to the definition of "irremediable'' since those words are synonyms, but no synonym is a perfect synonym, it seems to me. There is always some nuance to words.
I'm not a lawyer, but I think legislators are never supposed to use words without reason. Wouldn't a court, having to interpret the law, wonder why the legislator decided to use "incurable'' instead of irremediable? Isn't there a risk that the court would see a meaning in "incurable'' different from "irremediable?''
Ms. Klineberg: With respect, I don't agree. Incurable will be interpreted in the manner that the Minister of Health suggested, which is that physicians make determinations every day with their patients what conditions are incurable, taking into account the entirety of the circumstances, including the availability of treatments, the potential negative consequences of the treatments, and the choices that the patient has to make when given the full range of options of the treatments. That's part of standard medical decision making.
This word has to be understood in a manner that's consistent with the rest of the Criminal Code. It can't be interpreted to require individuals to take treatments that they don't want. That would be counter to other provisions of the same act. That would be an interpretation that I don't think could be sustained.
Senator Pratte: In your view, if we simply took away (a), it wouldn't change anything in the meaning of the bill. To take away any risk, we could just take out (a), and it wouldn't change anything, since the meanings are similar.
Ms. Klineberg: That would take a little more reflection, looking at the entirety of the bill and all of the conditions there. I'd want to have some discussions with our colleagues at Health Canada. Unfortunately, I'm not prepared to give an answer to that question right now.
Senator White: I'll follow up Ms. Klineberg's comments about availability of treatments. Even with this bill, we would have provinces and territories having different definitions since not all treatments are available across all provinces under provincial or territorial health care. Is that correct?
Ms. Hoffman: I would say it's theoretically possible. There will be variations in how a person's condition and possible available treatments might be represented by any provider to a patient, for example, a patient making a decision about whether or not they are prepared to undergo those treatments. It will depend on the nuances of how a provider will communicate that to a patient; and that may vary.
Senator White: The Supreme Court wants us to provide clarity. With the suggestion that what is incurable in Manitoba might not be incurable in Ontario, we will see assisted-dying shopping across the country. We're not really providing much clarity if that has the potential to happen.
You're talking about opinions of doctors, and I'm talking about access to treatment and what is accessible and what is not accessible. I could give you 20 different examples across this country in the provinces and territories.
Ms. Hoffman: There may well be differences within jurisdictions, depending on whether a person lives in a major population centre with several large research-based teaching hospitals or whether their local health care institution is something else. Obviously, the aspiration in the country is to try to even out those differences, but that's not to say that absolutely everyone has access to the identical opportunities for treatment, particularly in their immediate area.
Senator White: Rolling back to the comments of my friend about words that mean the same but can be interpreted differently across the provinces, we would like as much clarity as possible for Canadians. In the thousands of emails I'm getting, and they don't all agree, they do want clarity. I'm not sure they see the clarity here. We talk about irremediable and incurable, and then they look at the Supreme Court of Canada decision, which for most Canadians brought more clarity than this bill does. Do you not see an opportunity for us to be clearer as well and to draw down at least what the Supreme Court of Canada told us?
Ms. Hoffman: I'm not sure exactly how you're proposing that this plays into these decisions. These are individual decisions — the circumstances of an individual patient, including access to what may be only sparingly available treatments for some rare or unusual disease and the decision being made about whether or not that patient in their circumstances, whatever they may be, suggested their condition is incurable, assuming that they've been told about the treatments available and they've reflected their willingness or not to undergo those treatments.
Senator White: If it's about the individual, why wouldn't we allow them advance directives in this bill? This is about respecting individuals' rights. Let's talk about that.
Ms. Hoffman: Of course, there's a full range of issues that apply to autonomy. We've already discussed one of those — whether or not an individual who is self-medicating should be subject to one or more witnesses. A decision in respect of the legislation has been taken in that instance — that it's reasonable to respect the patient's autonomy and not require a highly formal process when an individual is self-medicating.
You're right in that there is a whole array of issues related to autonomy. But autonomy is also not a completely black or white concept, especially in a context like this.
The Chair: We have only seven minutes left, and I have four senators on my second round.
Colleagues, I would suggest that you pose your questions, and officials take note of them and respond in email via the clerk this afternoon so that we have them today. That way, we'll have them prior to clause-by-clause consideration tomorrow.
Senator Jaffer: Ms. Klineberg, you said that you used "incurable'' because it's easier to understand. These are professionals who will interpret the law. Do you think that doctors need an easier word definition than "irremediable?'' Can you answer that in your email, please?
[Translation]
Senator Boisvenu: When Bill C-14 was tabled, Justice Canada published a glossary. Does it include a definition of "foreseeable death''?
[English]
Senator Joyal: Ms. Klineberg, the bill establishes that the person to have access to medical aid has to have a grievous and irremediable medical condition, and only if they meet the criteria of being incurable. That's one of the criteria. When you want to introduce that treatment, it has to be acceptable to the person, according to what you say is the law in the Criminal Code. You introduce it at (c) for the suffering but not for the illness.
Why do you not agree that we should introduce the same criteria for the illness to make sure there is no uncertainty between the two conditions — the condition of illness and the condition of suffering? The condition of suffering is alleviated by the decision of a person to refuse treatment to alleviate the suffering. Why wouldn't we have exactly the same exemption in (a)?
Senator Batters: First, I look forward to receiving the information about the provincial and territorial frameworks, and potentially the ages. Also, could you provide with that what some of the other major distinctions are between the regulatory frameworks?
I have a comment based on what Senator Marshall was asking about earlier. Because of the House of Commons' amendment that was made to this bill, it's voiced that there are 180 days to start the study of advance directives and to study matters that frankly the majority of Canadians do not want to see happen, such as having mature minors included and having mental illness as a sole underlying basis included. You've said to us today that it could take 12 to 18 months to put regulations in place.
Is it possible that you may not have any information gathered in response to those regulations by the time those studies even start?
The Chair: Are all of you clear with respect to those questions? Is any clarification or elaboration needed?
Thank you, officials for being here. It's very much appreciated.
On our second panel today, we will be hearing from Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP; and Gerald D. Chipeur, Partner, Miller Thomson LLP. Tom McMorrow, Assistant Professor, University of Ontario Institute of Technology, is joining us by video conference from New Orleans. Catherine Ferrier, Division of Geriatric Medicine, McGill University Health Centre, is also joining us by video conference, from Montreal.
Welcome all. Witnesses, please to try to keep your opening statements as brief as possible. I know all members would like to have the opportunity to ask questions. Mr. Hogg, perhaps we can begin with you.
Peter Hogg, Scholar in Residence, Blake, Cassels & Graydon LLP, as an individual: Thank you very much, senator.
My name is Peter Hogg. I do have a written brief, which I gather has been circulated. It is short, but I will be short in my introduction.
I am only a constitutional lawyer, and so I can't assist you on any important issue about physician-assisted dying; I'm going to limit myself to a purely constitutional point. It's a point that I know you have heard before, but the House of Commons heard it before, and it made no difference to the House of Commons, so I think it is worth repeating.
When the court in Carter suspended the declaration of invalidity for 12 months — which of course was later extended to 16 months, to today — the court said the purpose of the period of suspension was to allow Parliament and the provincial legislatures to respond, "should they so choose, by enacting legislation'' — and I have emphasized this in my brief — "consistent with the constitutional parameters set out in these reasons.'' I repeat: ". . . consistent with the constitutional parameters set out in in these reasons.''
One of the issues that the Senate has to determine is whether Bill C-14, as it emerged from the House of Commons, is consistent with the constitutional parameters set out in Carter. That's the only point upon which I am going to talk.
In my opinion, Bill C-14 is not consistent with the constitutional parameters set out in Carter. The most important deviations — these are the only ones I will talk about — are the provisions of the bill that deal with end-of-life requirements: 241.2(2)(b), ". . . an advanced state of irreversible decline in capability;'' and 241.2(2)(d), ". . . natural death has become reasonably foreseeable . . . .''
If you go back to the court's order, you will see that neither of those requirements, nor anything to the same effect, was in the court order. Initially, the Government of Canada argued that end-of-life requirements were implicit in the decision in Carter, even though they weren't explicit. Since then, there have been two cases which have considered that issue and squarely rejected it.
I'm sure you know both the cases. One is a decision of the Alberta Court of Appeal, and the other is a decision of Mr. Justice Perell of the Ontario Superior Court of Justice. In both those cases, the applicant was suffering from a grievous and irremediable condition that was not terminal. In both cases, a careful analysis of the Carter reasons yielded the conclusion that no end-of-life requirements were express or implied in Carter. In both cases, these were individual applications for permission, and in both cases, permission was granted for a physician-assisted death.
Based on those two cases, and on a natural reading of Carter itself, we can say that right now, persons who satisfy the conditions set out in Carter but who do not have a terminal aspect to those conditions have the right to physician- assisted suicide. That's the position today. Of course, if Bill C-14 is enacted in its present form, that class of persons will be excluded from the right; the right that they have today will disappear when Parliament enacts Bill C-14, if it is enacted in its present form.
The Chair: I have to jump in there and move to Mr. Chipeur.
Gerald D. Chipeur, Partner, Miller Thomson LLP, as an individual: Thank you very much, sir. It's always good to have two lawyers because when you have two lawyers, you're sure to have two opinions, and that is the case here.
It's important to keep in mind another part of the decision in Carter. I will refer the committee to paragraph 97, which says.
At this stage of the analysis, the courts must accord the legislature a measure of deference. Proportionality does not require perfection. . . . Section 1 only requires that the limits be "reasonable''. This Court has emphasized that there may be a number of possible solutions to a particular social problem, and suggested that a "complex regulatory response'' to a social ill will garner a high degree of deference.
It is my submission to you as senators that Bill C-14 is constitutional in its current form. That doesn't mean that you can't improve it. That is a social policy question for Parliament, and Parliament, at the end of the day, in this dialogue with the courts, always has the final say.
Now, the Chief Justice of the Supreme Court of Canada may say that the court has it, but since it's a dialogue, you have a chance to respond. If you give to the court, and to the country, a complex system that regulates this issue, in your opinion, in the best way possible based upon the words from the Supreme Court of Canada, it is likely that that court will respect your response in this dialogue with the court. So I encourage you to make a decision that is, in your opinion, the correct one. You're not in handcuffs, you're not in shackles, and your opinion is important.
My second point, and the other thing that is important, is that it is critical that Parliament act. If Parliament doesn't act, there are at least a half dozen Criminal Code provisions that immediately will apply to physicians, nurses, health care institutions and their administrators. It will be legal and constitutional chaos. As a lawyer, if I was advising a health care provider, I would say, "Do nothing.''
I would suggest that that may be the response, if Parliament does not act. That is, any wise health care provider, knowing the Criminal Code provisions, knowing the potential for negligence lawsuits and just understanding the consequences of a legal vacuum, would just simply stand back and do nothing. Remember, there is no right to death. The Supreme Court of Canada specifically said in Carter that there is no right to death. There is just a right to equality with respect to decisions about death. There is no right to food. There is no right to health care. There is no right to housing. These are rights that we have passed through legislation. We give health care to the citizens of Canada, but it's not in the Charter.
So there is nothing in Carter that says there is a right to death or that there is a right to force a physician to make the decision to end life.
My final point is that it is within your power to simply create an exception for all health care providers and institutions that choose not to participate in providing death, just like you do, as Parliament, with respect to the Income Tax Act and the issue of charitable organizations. Parliament could not legislate with respect to charities if it just did so vis-à-vis charities alone, but it was free to carve out charities from the Income Tax Act.
The same thing goes with respect to the issue of consent. Constitutionally, it's possible for you to say, "We're not going to create greater choice for patients on the back of taking away choice from those who are providers.'' Thank you very much.
The Chair: Thank you. Dr. Ferrier, please go ahead.
Dr. Catherine Ferrier, Division of Geriatric Medicine, McGill University Health Centre, as an individual: For 30 years, I have been diagnosing, treating and caring for frail older people, often with Alzheimer's disease and other dementias. I see them in the clinic and in their homes. I do capacity assessment, and I intervene in complex social problems related to dementia, psychiatric illness and social problems. I see abused and neglected older people, and I often testify in court for my patients.
There are many things in this bill that I find alarming with regard to their safety, but I am going to speak to the recommendation that I saw in the Senate report for euthanasia or assisted suicide by advance request, which I find very dangerous. I'll explain why, I hope.
Two years ago, a retired psychologist in British Columbia who had recently been diagnosed with early dementia committed suicide, and launched a website and media campaign urging other people in her situation to do the same thing. She referred to her future self as a vegetable and an empty husk, and any care she would receive as ludicrous and wasteful.
I've rarely heard any group of people referred to with such contempt in this country and at this time. It was an insult to my patients. I think if any other minority group had been referred to in such derogatory terms, there would have been a public outcry. I wrote an angry response that was published in the Montreal Gazette. Every patient and family member I saw that week said, "Thank you for writing that,'' as did some strangers who wrote to me.
I think it takes no special insight to realize that people like my patients with dementia and frailty are the principal intended "beneficiaries,'' so called, of the recommendation for euthanasia by advance request. I think that those who campaign for it are driven by ideology and fear, not by experience and certainly not out of preoccupation for the people most concerned, who are the people that I care for.
Advance medical directives are used in other situations for stopping or for refusing treatment. I won't go into it in detail, but they can be useful tools, but there are always problems: If they are too specific, they can tie the doctor's hands; if they are too general, they can be abused and misinterpreted, either by the family or by the health professionals — and the patient's will is not followed. That's not to mention lack of consent and capacity at the time of signing. There are often general texts that are included in people's incapacity mandates that are not useful at all in this context, and I think can be very dangerous.
The notion of killing someone in obedience to a written directive that is said to have been signed by that person when they were competent is a recipe for elder abuse. Not long ago, there was a story in two Montreal papers about a patient of mine who was a widowed Ukrainian immigrant with no children and no relatives in Canada. A woman posing as her niece produced what was later found to be a forged document said to have been signed by the patient — what we call in Quebec an incapacity mandate, which in other places is known as a durable power of attorney. She had my patient declared incapable and removed from her home against her will, and she took control of her life savings.
The patient ran away from the nursing home with her walker in freezing weather. Only then did the police and the social services system begin to wonder about the so-called niece's claims. The patient was not incapable.
I see cases like this all the time. I see wills that are changed at the last minute when the person is in the hospital a few weeks before dying, and the question is raised whether they were competent to change it. I see families fighting over money, over who will have control of the patient's funds and over how much will be spent on nursing care before the person dies, which is that much less to be inherited by the children. I see constant conflict about written documents and their validity.
If we speak precisely about euthanasia by advance directive, even assuming it's legitimately signed by a capable person, one thing I do regularly in my office is inform people of a diagnosis of Alzheimer's disease or other dementias. It's a major life crisis to receive that diagnosis.
As you can imagine —
The Chair: Doctor, I am going to have to ask you to wrap up please.
Dr. Ferrier: What I'm saying is that somebody who has just received a diagnosis is not in any situation to ask to be killed later on. It's going to be an impossible situation for the family to try to apply that or for doctors to try to apply that.
It's legal in the Netherlands, and it's almost never followed.
The Chair: Thank you. I'm sorry, but we must move on. Professor McMorrow, the floor is yours.
Tom McMorrow, Assistant Professor, University of Ontario Institute of Technology, as an individual: Thank you for inviting me today. I'm honoured by the opportunity, and I regret that I cannot be there in person.
A crucial question before you is whether, under section 1 of the Charter, Parliament is authorized to restrict the class of persons declared by the court in Carter to be eligible to exercise their section 7 rights to physician assistance in dying. Some argue that because the bill prescribes narrower eligibility criteria than Carter, it must therefore be unconstitutional. This is not necessarily true. I wish to explain why.
After the Supreme Court has declared a law to be constitutionally invalid, Parliament and provincial legislatures can and often do enact new legislation to meet the same objective that the old one was intended to achieve. The most prominent example is the 1999 case of R v. Mills. Although Parliament had made a law that was strikingly similar to the one struck down, the court said that this did not automatically render the new legislation unconstitutional. From that judgment:
The law develops through dialogue between courts and legislatures . . . . Against the backdrop of O'Connor, —
— which struck down the original legislation —
— Parliament was free to craft its own solution to the problem consistent with the Charter.
Therefore, in principal, the court can, and in practice sometimes does, defer to Parliament. Crucially, the court stated in Carter:
It is for Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.
Importantly, the court stressed that complex regulatory regimes are better created by Parliament than by the courts. They proceeded to suspend the court's declaration of invalidity twice to grant Parliament an opportunity to pass relevant legislation.
Section 1 of the Charter provides that its rights and freedoms are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The question is whether Bill C-14's restrictions on the rights affirmed in Carter constitute reasonable limits. The court in Carter held that banning physician-assisted suicide altogether did not qualify as reasonable limits. It concluded that the absolute prohibition was not necessary in order to substantially meet the government's objective; therefore, it was disproportionate. The court characterized the law's objective as "the goal of protecting the vulnerable from taking their life in times of weakness.''
The court rejected the government's position that the objective of the blanket prohibition on assisted suicide was to preserve life or even prevent suicide. The court is generally reluctant to let Parliament rely on vague and symbolic objectives to justify infringements of Charter rights.
Bill C-14 lifts the blanket ban on medical aid in dying only for those whose death is reasonably foreseeable. Those like Ms. E.F., the 58-year-old woman who passed away this week who was suffering from a painful psychogenic movement disorder and was involved in the recent Alberta Court of Appeal case, would not be permitted medical assistance in dying under the proposed regime. The rationale behind this restriction differs from the court's line of reasoning in Carter.
As I have already noted, the Supreme Court itself acknowledges that we cannot expect the courts and legislatures to always be of one mind; the possibility of dialogue precludes it. It's important to note that the specific legal effect of the Carter decision was the invalidation of the blanket ban. We cannot presume that if the court were to hear a constitutional challenge to this bill, it would apply with reason in Carter.
If the court were to strike down Bill C-14, it would be because it had concluded that restricting the class of persons eligible to seek medical assistance in dying to those expected to die imminently violates the Charter in a manner that cannot be demonstrably justified in a free and democratic society. On the other hand, the court would justify its refusal to strike down the law on the basis of its respect for Parliament's democratic legitimacy, acknowledgement of the ethically contentious nature of this and recognition of Parliament's unique sovereignty and legitimacy in developing a complex regulatory regime.
While the parameters in Carter are wider than those in this bill, they are not as wide as they could be. The court did not interpret the Charter in Carter in such a manner that would invalidate any law that prohibits a competent adult, who gives informed voluntary consent, from obtaining assistance in ending their lives. The court drew a line restricting eligibility to those with a medical condition. It is not evident why, according to clause 7, only those with a medical condition should be eligible to receive assistance in terminating their lives.
I'm not trying to trivialize the suffering of those like Ms. E.F., who qualified under Carter but would not under this bill. I'm just pointing out that Carter restricts access to medical aid in dying. In principal, therefore, Parliament may do so also. Whether it is constitutional for Parliament to restrict access to medical aid in dying more than the court has done turns on an application of the Supreme Court's section 1 jurisprudence to this specific piece of proposed legislation. No one can predict with absolute certainty what the Supreme Court will decide if this bill is challenged in the future.
The Chair: Professor, we have to stop there. I have 10 senators on this list. Once again, it may be an exercise in futility, but I'm going to ask senators to be as concise as possible with their questions and witnesses to be the same with their answers. It would be very much appreciated. Senator Jaffer can begin the questioning.
Senator Jaffer: Mr. McMorrow, I want a clarification from you. From what I understand in the Mills case, the nature of the additional restrictions was not mentioned in the ruling. In Carter, the guidelines were explicitly mentioned, were they not?
Mr. McMorrow: Procedures laid out in the O'Connor decision were premised on the idea that Parliament would not further restrict the right of the accused under section 7.
Senator Jaffer: Mr. Hogg, this is a real dilemma for me. If I understand the minister and officials, this is the first step. Let's first implement this, and then we will look at more. Let's just see how we change this. I very much respect that point of view because this is a very important issue for all of us. But I struggle, as a legislator, with the Charter. We have all read Carter where the Supreme Court said it has to be within constitutional provisions. Can you help me with this dilemma?
Mr. Hogg: Yes. I do not agree with either of the two legal witnesses. It seems to me that the court was very clear. The proposed legislation was basically to fill in gaps that had been left by the court. The gaps were in areas like procedural safeguards and that sort of thing. The idea was that the bill would be passed, but it would remain within the constitutional parameters. In my mind, that is completely inconsistent with using section 1 to narrow the parameters and exclude people who have a right to assisted suicide now from the bill and, therefore, from the right in future.
That's pretty clear. It's not just a case of normal legislation, which of course is always subject to section 1. This is carrying out a mandate from the court that was expressed in a very narrow and clear way. I think it gives no room for narrowing the class of entitled people. It could broaden the class of entitled people. It could add different safeguards, but it can't narrow the class of entitled people. It could broaden the class of entitled people and it could add different safeguards, but it can't narrow the class of entitled people. That's my reading of it.
Senator Plett: Mr. Chipeur, if you have been following this, and I know you have, you'll know that one of my real concerns is giving rights to physicians, medical practitioners, pharmacists, institutions and so on. I have been working on some wording for conscientious objection protection. I want to read something to you, Mr. Chipeur, and ask for your opinion on whether it would work in this bill.
We have heard the minister say again, even this morning on CBC, about the uniformity that we want across the country. If we were to change clause 3 on page 8 by replacing lines 32 and 34 with:
(9) For greater certainty, no individual or organization shall be compelled —
Right now nothing compels them.
— to provide or assist in providing medical assistance in dying, to provide a referral for medical assistance in dying, or to provide information on medical assistance in dying.
Do you think that would pass the smell test and be something that the federal government could put in and the provinces would be obligated to uphold?
Mr. Chipeur: I have said yes to that by referencing the way in which the Income Tax Act creates an exception for charitable organizations — something that Parliament could not do directly. Anytime you are creating and crafting the Criminal Code, you as Parliament may put anything in or anything out that you choose, and that is it. That absolutely trumps anything that the provinces can do.
However, I have three problems with your proposal. First, there is a penalty in section 241.3 that does not make reference to (9), which is a declaration in the air that is meaningless and would not have any impact on anyone. The amendment you just described first would have to be married with an amendment to proposed section 241.3 to add subsection (9) to one of the sections that need to be amended.
Senator Plett: It could be.
Mr. Chipeur: It could be. Second, you need to put in the word "anyone'' because right now proposed section 241.3 just references physicians and nurses, for example, and you need to talk about bureaucrats, hospitals and anyone who might have power to force a physician or a nurse to act contrary to their choice.
Third, the model of 241.2 seems to be a set of safeguards and conditions. However, (9) doesn't read like a condition and may be better alone. I'm comfortable with (9) there if you also add to (7) of 241.2 the exact same language you just read for (9).
Senator Plett: Dr. Ferrier, could you comment on that as well?
Dr. Ferrier: It's the first time I have heard that proposal, but it sounds quite good to me.
Senator Cowan: Mr. Hogg, in paragraph 126 of the Carter decision, the court laid down the declaration and established what I could call eligibility criteria for medical assistance in dying. In paragraph 126, and we have referred to this before, the court invited Parliament and the provincial legislatures to respond ". . . should they so choose, by enacting legislation consistent with the constitutional parameters set out in these reasons.'' Are the constitutional parameters set out in paragraph 126?
Mr. Hogg: Yes, in my view, they are. That is not an invitation to apply section 1 to change the constitutional parameters. In fact, it's pretty clear that it's a prohibition on using section 1 to narrow the Constitutional parameters; but that's not part of your role.
Senator Cowan: But those are the constitutional parameters the court was speaking about, the eligibility criteria set forth; correct?
Mr. Hogg: Yes.
Senator Cowan: You're suggesting to us the bill, as it is now, is unconstitutional. Would the fix, or a fix, be to simply replace the wording in section 241.2, and particularly section 241.2(2), with the precise wording of paragraph 126 of the Carter decision?
Mr. Hogg: I don't know whether that would be the best fix, but it would be the most obvious fix, and in my view that would be a fix.
Senator McIntyre: Thank you all for your presentations.
My question has to do with the apparent link between the factual circumstances in Carter and Bill C-14 — at least, that appears to be the position of the federal government.
Let me explain: In Carter, the court only heard evidence about people with late-stage incurable illnesses who were in physical decline and whose natural deaths were approaching. The court then struck down two sections of the Criminal Code on the grounds that they were a violation of Charter rights for a person in these circumstances.
Accordingly, the bill does not cover issues that were beyond the circumstances — at least that's what I can see — and evidence considered by the courts in Carter, including mature minors, advance directives and mental illness as a sole underlying condition.
My question is this: In your opinion, was Bill C-14 deliberately drafted to respond to the factual circumstances that were the focus of the Carter case?
Mr. Hogg: No, I don't believe that is the case. In fact, I think Carter herself was not in the terminal condition that would be required by Bill C-14.
Senator McIntyre: That appears to be the position of the federal government. This is how they are justifying Bill C- 14.
Mr. Hogg: Yes. I am disagreeing with it. I'm saying that, in fact, there were a group of plaintiffs in Carter, and the litigation was specifically designed not to focus on a single person, as the Sue Rodriguez legislation had 20 years early. That's why the B.C. Civil Liberties Association was actually one of the plaintiffs.
The idea was not to focus. I know the court says something about how it's focused on the cases that are before them, but that's not correct, in my view. Carter herself would not have satisfied the new conditions in the bill.
Senator McIntyre: Would anyone else care to comment?
Mr. McMorrow: I think that that rationale, which may have informed the justification that the federal government would have given, has been subjected to serious scrutiny by those two recent cases: the Alberta Court of Appeal case and the Ontario Superior Court case.
At issue here is the fact that we have a new law with a new, more permissive regime than existed under the Criminal Code at the time Carter was decided, but a more restrictive one than Carter itself would appear to direct.
The question is can Parliament identify an objective to this new legislation to which the restrictive framework is itself proportionate? I think that is a crucial question for Parliament because I don't think it is quite as easy as just identifying those parameters as laid out in Carter. I think there is room for manoeuvre, but at the same time it has to be justified under section 1. While R v. Mills sets the high water mark on that, we have obviously heard some strong reasons for why Parliament should proceed carefully.
Senator Joyal: I have two questions, one for Mr. McMorrow and one for Mr. Hogg.
Mr. McMorrow, you quoted the Supreme Court decision of R v. Mills of 1999 in support of your contention that Parliament would have the freedom to enact a regime whereby it can decide to exclude patients who are not suffering from terminal illness, while, in fact, R v. Mills, at paragraph 22, states:
However, these differences are not fatal because Bill C-46 provides sufficient protection for all relevant Charter rights.
It was quite clear in R v. Mills that Charter rights are protected: Parliament can enact a regime to implement those rights, but Parliament cannot, through the implementation of a regime, negate those rights. That's what Bill C-14 does, in my opinion. So R v. Mills is of relatively little importance in establishing the capacity of Parliament to go beyond Carter. That's my first question.
Mr. Hogg, the government claims the bill is saved by section 1, but in my own reading of section 1 of the Charter, the bill has to bring minimal impairment over Canadians who have a right, and there has to be a rational connection between the bill objectives and those patients who are excluded. It doesn't seem to me that, in applying the criteria of section 1, this bill succeeds in maintaining the legality or the constitutionality of the exclusion of all those patients who suffer intolerably and are experiencing the same conditions as those who are terminally ill.
The Chair: This is the time for concise responses.
Mr. McMorrow: I think that the accused in R v. Mills would argue that the new legal regime that was imposed by the sequel legislation passed by Parliament did unduly restrict his constitutional right. I point to R v. Mills more to highlight this principle that Parliament does have deference; I'm not saying it's necessarily the best application of that deference to support this legislation.
Mr. Hogg: I think it's incredible to think that what was intended by the court, when it said to pass legislation consistent with the constitutional parameters of the case, was to exclude a whole category of people who had won the right through three stages of litigation up to the Supreme Court of Canada.
I agree with you, senator, that there is no section 1 analysis here; you would have to have a compelling objective for excluding the people who are not terminal. Then you would have to show that it was no more than necessary, that it limited the right as little as necessary and that it was, on balance, a good thing. The government could do the whole section 1 analysis in court, but there's nothing in Bill C-14 to suggest that.
I say that the grant of power to Parliament in Carter makes clear that they can't turn around and suddenly exclude from the right a group of people who have just been granted the right by the Supreme Court. The court couldn't have intended that, I say.
[Translation]
Senator Boisvenu: Mr. Chipeur, in 2015, the Supreme Court ruled in Carter that it would no longer be illegal for a competent adult suffering from a grievous and irremediable illness or disability to request and receive medical assistance in dying. That is the essence of the Carter decision.
Does Bill C-14 apply to persons whose death is foreseeable in a short time and to those suffering from a chronic degenerative disease?
[English]
Mr. Chipeur: In my opinion, Bill C-14 will apply where the diagnosis is that you will eventually die from the diagnosis that the physician has identified.
[Translation]
Senator Boisvenu: You answer like a lawyer.
The Department of Justice stated this morning that Bill C-14 does not apply to both cases and that they are discriminatory relative to each other, while the decision in Carter is not discriminatory.
[English]
Mr. Chipeur: If you want me to talk about the specific question of that limitation, then my recommendation to this Senate is to ask yourselves this question: Is the limitation necessary to protect vulnerable people from abuse and error? That's the test the court has set, and I disagree with my friend, Professor Hogg: I don't believe your power comes from the court. It comes from the Queen; it comes from the people. And you are free to make whatever decision you think is best to protect vulnerable people from abuse and error.
If you believe that it is necessary to limit it to just those who have a diagnosis that will lead to death, then you get to make that decision. It's not for the court, and it's not for anyone else. Parliament is the sole decision maker on that point.
[Translation]
Senator Boisvenu: But that runs counter to the decision in Carter. Thank you.
[English]
Senator Baker: I'd like to thank all the witnesses for their excellent presentations.
I'd like to direct my question to Professor Hogg. I'll put the entire question out there so the chair won't cut me off.
He said that he was only a constitutional lawyer. Mr. Hogg, you're the most-quoted constitutional lawyer in the history of Canada. There are over 1,000 decisions of courts in Canada that quote you. In fact, you're so often quoted that, in the Carter trial judge's decision, you were quoted to back up her judgment. Then when you came to the Court of Appeal, you were quoted extensively in overturning the lower court decision, granted part of it was on a different issue of stare decisis.
Here is my question to you —
Mr. Hogg: You can go on.
Senator Baker: I'm not going to get into an argument with you. You're the expert.
My question is prompted by what Senator Cowan asked you as to the remedy that you would suggest for the bill before the Senate. Senator Cowan suggested the remedy would be to take out that whole subsection.
Mr. Hogg: There are two paragraphs.
Senator Baker: But there is more contained in that subsection than just those two offending subsections that you mentioned: (b) and (d).
Would your recommendation be one of these two things? Either just expunge the two offending sentences which you find unconstitutional — and by the way, that main section is from the Quebec legislation, so I presume you're saying that's unconstitutional as well — or would the better answer for the Senate be to either expunge the two sentences that are offending, in your opinion, or to leave them there and have a section that says "In cases where persons do not meet the requirements of (b) and (d), new additional measures will have to be undertaken, such as longer time periods, psychiatric evaluations and so on''?
Which is it? Would you prefer to expunge the offending sections you've identified, or to further qualify it by leaving it there and then covering those who are not covered legitimately in the first section?
Mr. Hogg: I would prefer to expunge the offending provisions, because I think that's more consistent with Carter. They were not part of the Carter requirement, and they don't express ideas that are not terminal life ideas. For example, (b) says "they are in an advanced state of irreversible decline . . . .''
Senator Baker: That's from the Quebec legislation. That's identical.
Mr. Hogg: Is that the Quebec legislation as well?
That, I think, could go. And there's nothing that would require saving. Then (d) says "their natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.''
Again, that's all one idea, just expressed in a lot of different language. I would suggest that just taking that out completely really solves the problem.
Senator Baker: Both of them, or just the last one?
Mr. Hogg: Both of them.
Senator Batters: Thank you very much. Professor McMorrow, you wrote an article about Bill C-14 and its constitutionality for Policy Options. Here is a short part of that where you indicate:
The Supreme Court did not draw the line at having a terminal condition, but that does not necessarily mean Parliament can't. What needs to be shown is that restrictions constitute "reasonable limits'' — not what the court may view as "optimal'' ones.
Could you give us more information about that, specifically dealing with the issue of terminal illness and end of life?
Mr. McMorrow: The point I was trying to make there is that just because the criteria laid out in this proposed legislation are not identical to the ones in Carter does not automatically invalidate the legislation.
That said, I don't think Parliament is justified or permitted to ignore the jurisprudence of the Supreme Court. What I think Parliament needs to do is identify what the objective of this legislation is. If it's like the objective that the court characterized the last piece of legislation to have, namely that of preventing vulnerable people from being induced to commit suicide at a time of weakness, the court will strike it down. Because of the decision in Carter, that's not a satisfactory justification.
What you need to decide is does the objective — for example, in the preamble it says affirming the inherent and equal value of every person, discouraging negative perceptions of the quality of life of persons who are elderly, ill or disabled, balancing the interests of society and the protection of the vulnerable with the autonomy of the person. Do those amount to a justification that you think is proportionately achieved with this proposed bill?
Senator Batters: Dr. Ferrier, in the second reading speeches in the Senate chamber, some senators voiced their desire to have advance directives apply in Canada right away, not after undertaking further study to determine necessary safeguards, as Bill C-14 has that as an area for further study.
Given your significant experience in geriatric medicine, could you tell us what risks you would experience in your day-to-day medical practice in having advance directives apply in Canada right away?
Dr. Ferrier: What I saw as proposed was that a person could make an advance directive when they're diagnosed with a disease that could lead to their incapacity. In dementia, for example, that would give them a very small window in which to make that decision. They would be making it in a hurry and in a time of crisis. That would not necessarily be a reasoned and capable decision.
As I tried to mention earlier, I think there are lots of problems with frail, older people in adequate decision making with any document, but in this particular one because the consequences are much more serious.
In the Netherlands, where advance directives are legal, what happens is that they are almost never followed because the doctors don't feel that they can ascertain the patient's wishes at the time, nor can they ascertain whether they are suffering unbearably.
There's a difference between someone, for example, with dementia and someone in a coma because someone in a coma has no connection with the outside world and cannot express anything, whereas someone with dementia can, often, for several years — unless it is very advanced — have wishes and may not wish to die at all.
Senator Batters: Would mental illness by those patients exacerbate some of these risks? Can you tell us what additional safeguards you would like to see to help that?
Dr. Ferrier: A feature of Alzheimer's disease, for example, is depression in the early months to years. That would certainly influence the desire to die. It's not only depression on the basis of having received bad news, but it's also part of the biological situation with someone with dementia, so that could weight it in favour of suicidal desires.
Senator Batters: As can the medication they are on, correct?
Dr. Ferrier: If they're on medication for depression or antipsychotics, which sometimes we have to put people on, yes, absolutely.
Senator Marshall: My question is for Mr. Chipeur. I'm reading from your document called Check List for Legislators: Towards a Canadian Approach to End-of-Life Choices.
I'm going to quote from a couple of areas. One is that you say the Supreme Court of Canada agreed with the view of the trial judge that a carefully designed system would include stringent limits that are scrupulously monitored and enforced. You go on to say that scrupulous monitoring and enforcement of limits on physician-assisted suicide is necessary to protect the vulnerable.
There's also a reference there about a possible role for the Office of the Chief Medical Examiner. There's also a reference to the fact that there is typically a 25 per cent complications rate where a physician assists in a suicide in jurisdictions currently allowing physician-assisted death.
My question refers specifically to clause 4 of the bill, which will not come into force with the rest of the bill. It defines a possible regulatory framework, and it includes information that's to be provided in the monitoring, analysis and review of cases where medical assistance in dying has been provided.
Generally, it's there to protect the vulnerable.
We heard this morning that there is no federal framework, that clause 4 won't come into effect possibly for eight months, and we may or may not get regulations. We were also told there are provincial frameworks, but they are not consistent.
Do you have any concerns or comments on the delay to bring clause 4 into force?
Mr. Chipeur: Yes, I do. Parliament has a duty under section 7 of the Charter to actually protect the life of citizens. You can't just leave it to the provinces and say to them "you fix this.'' Parliament has a duty to ensure that as you provide for the rights identified in Carter that are guaranteed in section 7, according to the Haas v. Switzerland decision, which I referred to in my article, there is, under section 7, a right that Canadians have generally to look to their government to protect life.
While careful studies should be done, it is important for Parliament to act now and as soon as possible to provide for, as the court describes it, a complex system that stringently protects from abuse those who might be vulnerable.
Senator Marshall: Thank you very much. That's my conclusion, also.
[Translation]
Senator Bellemare: I am not a lawyer, but an economist. My approach and way of thinking are different from that of a lawyer, especially a professor emeritus.
My question is the following. Is Bill C-14 consistent with Quebec's law? Quebec's current law pertains specifically to end of life and to persons who are terminally ill. That person's life can be shortened a bit, but they are nonetheless at the end of their lives. That is very, very clear.
The criteria set out in paragraph 241.2(2)(d) of Bill C-14 are more flexible. It refers to a foreseeable death, the prognosis that an illness or disability will lead to death, without the expected death necessarily being directly linked to the illness in the second part of paragraph (d). It can be related to a whole set of conditions that mean that the patient can no longer walk, for example, and, as a result of not being able to walk, various other functions deteriorate. So there is general decline. In the third part of paragraph (d), there is not necessarily a prognosis. That means that death is expected, but the exact time of death cannot be predicted. The prognosis is not clear.
The scope of Bill C-14 is therefore much broader than Quebec's law, although Quebec's law is consistent with the bill's wording. If we remove all of the provisions of Bill C-14 that you want to remove to make the bill applicable to a range of people who are enduring intolerable suffering but who have no diagnosis or prognosis, would Quebec's law inevitably be challenged as being unconstitutional according to these parameters? The provisions of Quebec's law form a sub-set, but what would happen if there is no longer a sub-set?
[English]
Mr. Hogg: I may give an unsatisfactory answer in English, if you don't mind, senator.
The Quebec act, of course, was passed before the Carter litigation, and it wasn't directed to physician-assisted dying, particularly; it dealt with the end of life in a variety of different situations. I would hesitate to be confident that it is unconstitutional. Although, to the extent that it does limit physician-assisted dying in ways that are inconsistent with Carter, perhaps it would be unconstitutional to that extent.
I think I would need to do a much more careful analysis, though. I wouldn't assume that it's unconstitutional. It's really directed in a related but different area.
The Chair: I think that's going to wrap it up for us. On behalf of the committee, I want to thank all of our witnesses for appearing today and assisting us in our deliberations. It's very much appreciated.
On our third panel today, we will hear from Amir Attaran, Canadian Research Chair, Population Health and Global Development Policy, University of Ottawa. He is joining us by video conference from Mexico City. I have been advised that the audio may not be great. We will just have to appreciate some of the challenges. We'll also hear from Trista Carey, Partner, Schnell Hardy Jones LLP; and Josh Paterson, Executive Director, British Columbia Civil Liberties Association. Mr. Paterson is joining us by video conference from Vancouver. I thank you all for being with us today. Again I emphasize the time constraints we have. If you could recognize that during your opening statements, it would be very much appreciated. Ms. Carey, please give us your opening statement.
Trista Carey, Partner, Schnell Hardy Jones LLP, as an individual: Thank you for inviting me to speak today. As council for E.F., the Alberta woman with severe conversion disorder, I have followed closely the introduction and progress of Bill C-14. In my opinion, this proposed legislation falls significantly short of what was intended by the Supreme Court in Carter and should not be passed as drafted. I understand that the honourable Minister of Justice has suggested that our case had nothing to do with Bill C-14. With all due respect to the minister, E.F., Carter and Bill C- 14 are inextricably linked.
Bill C-14 was introduced approximately one week before we filed our application and shaped our strategy. While we believed that our client clearly met the eligibility criteria as set out in paragraph 127 of Carter 2015, it was equally clear to us that she would not qualify for medical assistance in dying under Bill C-14. We were working against the clock to uphold our client's right to life, liberty and security of the person because there was genuine concern that they would be denied to her after June 6.
A copy of Bill C-14 was attached to the affidavit filed by the Attorney General of Canada at the Court of Appeal. Canada admitted when questioned by the Court of Appeal that E.F. likely would not qualify for medical assistance in dying under the legislation as proposed. In our application, we did not make any Charter arguments relying on the decision of H.S. wherein Madam Justice Martin found that the Supreme Court has already granted a constitutional exemption and, therefore, the only issue to be addressed by the motions justice was whether our client met the eligibility criteria in Carter or not. This was confirmed at paragraph 5 of our Court of Appeal decision.
In the original application, no materials were filed by any of the attorneys general; however Canada, British Columbia and Alberta all appeared and took issue with aspects of our application and/or opposed it on various grounds. Canada argued that E.F. did not meet the criteria of Carter on the basis that her underlying condition was of a psychiatric nature and not terminal. Canada relied on paragraph 111 of Carter, where the Supreme Court stated that recent controversial and high-profile cases of assistance in dying in Belgium would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.
After thorough analysis of the eligibility criteria in her oral decision, Madam Justice Bast found that those with psychiatric conditions were not excluded on the basis that the criteria and safeguards implemented in paragraph 127 addressed the concerns set out in paragraph 111. Similarly, she found there was no language in Carter 2015 that limited its application to only those with terminal illnesses.
While Canada spent some time arguing at the Court of Appeal that Justice Bast erred in finding that a psychiatric condition qualified within the Carter criteria, Canada argued most strenuously that Carter was only ever intended to apply to the terminally ill, such as Gloria Taylor, due to the significant number of references to her throughout that decision.
Notwithstanding the carefully crafted language of paragraph 127, Canada argued that the true intention of the Supreme Court was to limit the criteria to only apply to the facts in that particular case and, therefore, only the terminally ill. Canada relied on the last two sentences in paragraph 127, which state:
The scope of this declaration is intended to respond to the factual circumstances in this case. We make no pronouncement on other situations where physician-assisted dying may be sought.
The Court of Appeal categorically dismissed these arguments in their decision, stating at paragraph 41:
. . . the declaration of invalidity in Carter 2015 does not require that the applicant be terminally ill to qualify for the authorization. The decision itself is clear. No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not. The interpretation urged on us by Canada is not sustainable having regard to the fundamental premise of Carter as expressed in its opening paragraph, and does not accord with the trial judgment, the breadth of the record at trial, and the recommended safeguards that were ultimately upheld by the Supreme Court of Canada.
What dismays me is that the Minister of Justice continues to use these same justifications for limiting Bill C-14 to the terminally ill and excluding anyone with mental illness when these very arguments have been made before the Court of Appeal in Alberta and expressly rejected. After careful analysis by both levels of court, it was found in our case that the Supreme Court did not discriminate against broad classes of people in the way that this government has attempted to do through Bill C-14. The legislation as proposed does not comply with the Supreme Court's eligibility criteria in Carter 2015 and unnecessarily infringes on the Charter rights of those suffering from non-terminal grievous and irremediable medical conditions, whether the conditions are physical or psychological.
Amir Attaran, Canadian Research Chair, Population Health and Global Development Policy, University of Ottawa: Thank you, chair. I am Amir Attaran, professor in the Faculty of Law and the Faculty of Medicine at the University of Ottawa. I am not going to rehash what Peter Hogg said, except briefly that Bill C-14 is unconstitutional by the bucketful. I have no doubt of that. Let me give you a bit of history, a cautionary history as to why the Senate should not pass it.
In 2004, Parliament passed Bill C-6, otherwise known as the Assisted Human Reproduction Act. Unlike Bill C-14, which is about ending life, the Assisted Human Reproduction Act was about creating life. But then, as now, because the subject touched life itself, Parliament felt that it had to micromanage and that without national standards there would be a patchwork, the provinces couldn't manage, and the sky would fall, all of which you have heard before from others.
In 2004, the house gave the Assisted Human Reproduction Act first, second and third reading in one day. Early on it went to the Senate inbox and to Senate committee where it had a little bit of study, but not much. The Assisted Human Reproduction Act travelled from bill to law inside of a month.
At the time, many warned, isn't this haste terribly ironic? For if creating life was so ultra-sensitive that Ottawa had to regulate it, shouldn't parliamentarians labour over the law for at least two meals? Lunch without supper does not sober second thought make. The speed here was basically that, at least in the house — first to third reading in a day.
Is this sounding familiar yet? I hope it is because listen to what came next. Just as Bill C-14 places limits on ending life, the Assisted Human Reproduction Act placed limits on creating life. A whole federal bureaucracy was created to collect data and to churn out national standards on fertility treatments, but the Governor-in-Council never enacted the regulations for those purposes. So the bureaucracy sat idle, although keeping the lights on at the Assisted Human Reproduction Agency of Canada cost $10 million annually.
Parliament knew there would be teething pains like this, so Parliament wrote into the act a three-year review. Nice idea, but the parliamentary review never happened. Then, the inevitable happened. The Assisted Human Reproduction Act faced a constitutional challenge from Quebec, saying that it trampled over provincial jurisdiction on health care; and that killed it. The Supreme Court eviscerated the act. Today only a rump of the act survives, little bits and pieces. The Assisted Human Reproduction Agency became an Ottawa zombie. In seven years and something like $70 million, it published pamphlets and held meetings, but it never made a single substantive "national standard.'' Thankfully, it's gone now.
So where am I going with this? The Assisted Human Reproduction Act was rushed through Parliament with imprudent haste. The ministerial promise for a three-year review never happened. Then came the constitutional challenge that everyone predicted, just like you are hearing today. That gutted the law. All the while, an ineffectual but pricy bureaucracy struggled to find relevance because it had no regulations. It was master of nothing.
Simply put, this misadventure on assisted human reproduction — Parliament's misadventure — did more harm than good in that field. Canada remains backward on human reproduction.
What I'm saying is that history is repeating itself. Bill C-14 is rushed. Promises that Parliament will review the law and fix it are empty, because that was promised with the Assisted Human Reproduction Act, too. It never happened.
Anyway, legal challenges will poke at the constitutional infirmities well before that. While some of Bill C-14 I think will survive the judges, to think that all of it will survive is magisterially delusional. What will be left after an engagement in the courts is a shredded, legislative rump that will downgrade the standard of care in physician-assisted dying to hard-boiled mediocrity, exactly as happened with assisted human reproduction.
The moral of the story is that when the federal government micromanages health interventions because they are "life and death'' or because there must be "national standards,'' as you're hearing, its track record is awful. National standards are mythical and overrated, anyway.
The Chair: I have to jump in here, sorry. We'll have to go on to Mr. Paterson.
Josh Paterson, Executive Director, British Columbia Civil Liberties Association: Honourable senators, Bill C-14 will not pass the section 1 test, because it continues the blanket prohibition on medical assistance in dying for a class of patients who have already won the right. I take as a starting point that an absolute ban on physician-assisted dying for people who are not terminal and not old and yet who are granted the right under Carter violates the section 7 Charter rights of those patients. That is a matter of established law. The government's rationale in the legislative backgrounder essentially concedes the point. But the government is wrong in its argument that Bill C-14's Charter violation is justified under section 1.
With great respect to the government and to those who echo them on this point, the fact that there is a new statutory scheme proposed and a new policy choice made does not take this into the territory of a justified violation of the Charter. Even granting Parliament the greatest deference, it is simply not open to Parliament to say an absolute "no'' where the Supreme Court of Canada has said that the supreme law of the land requires the answer to be "yes.'' Prohibiting anybody who qualifies for the right under Carter from accessing MAID is simply not among the range of reasonable alternatives from which Parliament can choose. It is a policy choice that is not within Parliament's authority.
It doesn't matter, particularly, that the bill allows assisted dying for another class of patients, and it doesn't matter that Bill C-14 has new, explicit purposes that did not underlie the struck-down provision. It doesn't matter that there is a new legislative scheme. These cannot cure the bill's absolute denial of the right to others who were already granted it.
Despite these new purposes and new legislative elements, the same justification arguments were already tried and failed, and they will fail again.
For Charter infringement to be justified, as the committee will know, it must, among other things, minimally impair the right at stake. This blanket prohibition obliterates the right of a whole class of individuals — non-terminal people who are not near to death — to choose an assisted death. It does so without any tailoring or care to minimally impair the established right.
In the dialogue under section 1, the government can regulate the manner in which the right is exercised but cannot eliminate it. That is what it has done here for the non-terminal class of patients who have already been declared to have won the right.
I would like to take senators through some of this reasoning in more detail.
The purpose of the original provision was determined in Rodriguez and Carter alike to be the protection of the vulnerable, animated by the underlying principle of preserving life. Justice Canada has added new purposes to Bill C- 14, most of which they tried to argue in Carter were purposes of the last prohibition, but they failed in doing so at court.
The new purposes include to recognize the autonomy of persons who have grievous and irremediable medical conditions; to ensure robust safeguards; to affirm the inherent and equal value of every person's right and to avoid discouraging negative perceptions of the equality of life of persons who are elderly, ill or disabled; and — and we hear so much about this — to protect vulnerable persons from being induced in moments of weakness to end their lives.
Each of these likely meets the test for a pressing and substantial objective. That's one hurdle the government must pass to succeed in arguing that a Charter infringement is justified. But the government will still fail on minimal impairment because of the blanket prohibition. However beneficial these purposes, the courts have been clear that in respect of physician assistance in dying, for this group of patients, a blanket prohibition cannot be the tool to achieve the government's aims.
The bill itself is primary proof that the absolute prohibition does not minimally impair the established right. More tailored methods of regulating access for these people were possible. They are evidenced by Bill C-14 itself where the government contemplates a regulated regime with doctors, witnesses, written requests and so forth. This was pointed out last week by some senators. The government can't logically hold up an absolute prohibition and say it's minimally impairing and place it next to a regulated regime. It is just a loser of an argument. The bill is therefore unconstitutional.
The question of whether people who are definitively granted the right in Carter should be able to have this right is not a legitimate area for dialogue between Parliament and the courts. This dialogue can take place around safeguards, but it can't take place around who is entitled to the right. I'm happy to elaborate more in question and answer.
The Chair: Thank you, Mr. Paterson. We will move to questions, beginning with the deputy chair.
Senator Jaffer: I have questions of all three of you, so please keep your answers tight.
Mr. Paterson I will start with you. You are the Executive Director of the British Columbia Civil Liberties Association, and you have been very vocal about the framework around June 6. As you know, the ministers have stressed what a difficult situation we will all be in if the Senate does not pass this today. Can you explain? Will there be a void? What situation will we be in?
Mr. Paterson: I'm happy to explain, senator. In short, there is no legal void today on June 6. Today, physician- assisted dying is legal in Canada for those patients who were described in the strict criteria of the Carter judgment.
There is no void. There is a federal law: the Criminal Code, which has this exemption carved out as described by the Supreme Court. Underlying that, of course, in every single province, from one ocean to the other, every single medical regulator has promulgated guidelines that are comprehensive, most of which are roughly the same in terms of the kinds of safeguards: We see two doctors; we see varying waiting periods. We see a lot of the same features of Bill C-14 right across the country. One territory has their guidelines in place, and the others are on the way.
The answer is there is no legal void. There is no wild west. It is June 6, and the sky is not falling. This is the new law, even without Bill C-14 having been passed.
Senator Jaffer: Mr. Attaran, I have a quick question for you. Many people have said that Bill C-14 should be referred to the Supreme Court of Canada. How could we go about doing this?
Mr. Attaran: My professional advice is this: You veto this bill. I know that's very rare, but that would be my advice. If you do not, though — if you want to amend it — insert an amendment that says that within 30 days of the law receiving Royal Assent, the Governor-in-Council must refer it to the Supreme Court of Canada. Any cases that have been filed in court in B.C., Ontario or wherever can be consolidated with that. You could write that. The power of the Supreme Court is a statutory one, and you could legislatively bind the Governor-in-Council to refer it. If the government determines that this is constitutional, I see no disadvantage in that, provided that the cases filed in the courts are also consolidated with the reference question at the same time.
Senator Jaffer: Ms. Carey, I read the case that you took to the Court of Appeal, and I'm really struggling with one fact. I don't know if you can clarify this, but if Bill C-14 is passed way it is, where does that put you if you had another case? What kind of a dilemma would it put you in?
Ms. Carey: I do not see that I'm in a dilemma if I had another case come to me that had similar circumstances. I follow Carter until there is something that tells me, as a lawyer, that I don't.
Senator Jaffer: Are you saying you would just ignore this bill?
Ms. Carey: I'm not saying I would ignore this bill, but I think it's relevant that both the motions justice and the Court of Appeal noted that this legislation had been proposed, but until it's proclaimed, it's not binding on the courts.
Senator Jaffer: Thank you.
Senator Plett: Mr. Attaran, in your presentation, you indeed came across as an extremely confident person. You seem to very sure of yourself. However, right here in our committee we have a constitutional lawyer. It may not be his legal title, but Senator Joyal is quite a constitutional lawyer. We heard here today from lawyers Mr. Hogg and Mr. Chipeur, who had opposite opinions. We have in the Senate, now, Justice Sinclair, who told us the other day that 50 per cent of all lawyers who have ever argued in front of him were wrong.
I'm not very supportive of this bill, so I'm not really sure that I would be upset if it's unconstitutional, but how do you square the box that you know a whole lot more than Justice Sinclair — a judge of the highest court of Manitoba — when he says this is a constitutional bill, and you are absolutely adamant that it is not? And not just that you think it isn't, but you know that it isn't?
Mr. Attaran: Well, the simple answer is that you have misstated what Justice Sinclair said. He never said it was constitutional. He said that it has a chance of surviving section 1, so you are setting up a straw man that isn't actually true.
What I will tell you is I think it's going to survive section 1, and I will go down in Hansard today saying it will fail for the reasons that Mr. Paterson and Mr. Hogg outlined. And as you know the Canadian Bar Association also thinks this thing isn't going to survive. You can have your own opinion on it, but I have mine.
Senator Plett: Thank you. I have a brief comment for Mr. Paterson in answer to Senator Jaffer's question. You said the sky isn't yet falling today, but it's not midnight yet. Thank you.
Senator Joyal: Welcome Ms. Carey.
Mr. Paterson, I would like to pick up where Senator Plett has left off in relation to the statement made in the Senate that, in fact, Bill C-14 would be saved by section 1 of the Charter. In all recognition of Senator Sinclair, he didn't elaborate on his reasoning for concluding that Bill C-14 would be saved by section 1.
For the benefit of the members of the committee, what is the test to be applied to a bill on the basis of the argument that section 1 triggers a class of citizens being deprived of their constitutional rights? In other words, what is the proof to be made in front of a court that a bill could survive such an exclusion? Which arguments or which elements of proof would the government or the Attorney General of Canada have to make to convince the Supreme Court of Canada that Bill C-14 is constitutional as it stands now?
Mr. Paterson: Thank you for your question, senator. Of course I'm joined by everyone there in having the greatest respect for Senator Sinclair, who is positively a giant. But I don't think he has got it right on this one.
It's clear that denying these people the right to make this choice would infringe their right of liberty. It would be a Charter violation: It infringes on their autonomy. All of those things were already well established in Carter. So the question now is, is that violation justified? That's done according to a three-part test under section 1 of the Charter that the government would have to go through if they are trying to justify a Charter violation. The goal of the government in the legislation has got to be pressing and substantial. That's step one of the test. As I talked about earlier, I don't think that the government is going to have a particular problem meeting that test. Any one of those goals set out could be argued to be pressing and substantial.
But that's not where it ends. The government then has to succeed in arguing that the measure that they have taken — in this case the absolute prohibition for access to non-terminal patients — minimally impairs the Charter right concerned. I have already dealt with that. We don't think it does minimally impair, and we think that's evident from the text of the bill itself. There was another way they could have gone, and they have done so with respect to terminal patients.
So they would fail on minimal impairment. But let's say we've carried on to the rest of the test. The next part is called rational connection. It means that the measure that you have put in place has got to be rationally connected to the purpose. Here we have seen that the purposes are, for example, to protect the autonomy of people. But we think that this would fail in doing that because it explicitly takes away the choice and autonomy of non-terminal patients, so it wouldn't be rationally connected.
They said that the bill protects the equality of everybody's lives and avoids negative perceptions of the elderly. Here the bill says that people who are old or near death anyway can die, and it also denies equality to younger people with the same illnesses. Kay Carter was 89, but if someone was 59 with the same condition, they wouldn't qualify under this bill. We don't think Kay would qualify either, but the government says she does. So that's the next piece.
The last piece is a test of proportionality. Even if you succeeded in these other pieces, you would still have to show that, with respect to the individual you're dealing with and their rights, the aim that you're trying achieve is not out of proportion with the rights violation. Here, we would be trapping people in unimaginable suffering. Unimaginable suffering. I mean, for some of these patients the evidence was excoriating and scorching coming out of the Carter decision and many of the exemption decisions.
Stacked up against that, we have this concern that some people may be vulnerable, which we could deal with in other ways. We think it would fail on that test, too. Those are the branches of the test that they have to pass. I would defer more to you, Senator Joyal, than anyone else who was probably helping to develop this test over time.
Senator Batters: Thanks very much. First of all, Mr. Attaran, we heard earlier testimony from the officials from the Justice and Health departments about the different jurisdictions in Canada, and I asked a few questions about what the regulatory framework is that's in place today, for the time frame until this particular bill goes into effect.
At the time that they were testifying, those officials thought that potentially it was just Alberta that would now, under this regulatory framework, allow for assisted suicide for people under the age of 18. But after the committee rose, they indicated New Brunswick and Yukon would also potentially cover people who are under the age of 18. Can you confirm that for me?
Mr. Attaran: I can't. I haven't read all of those guidelines, but I do know that some of the provinces and territories allow that. You're right, but I can't say which specific ones.
Senator Batters: Thank you. I thought you were here to testify about that.
Ms. Carey, in your client's case, there were three doctors and one psychiatrist who approved your client's assisted suicide request. Is that correct?
Ms. Carey: Two doctors and one psychiatrist.
Senator Batters: Two doctors and one psychiatrist, okay. In that particular case, your client's condition was based on the mental illness as a sole underlying condition, correct?
Ms. Carey: It was a psychiatric condition considered a physiogenic movement disorder. It's a little bit different, I think, than the stigma attached to mental illness.
Senator Batters: Okay. I read an article earlier today, which talked about the psychiatrist in that particular case, who ". . . reviewed her medical file but did not examine her.'' Is that accurate, and can you tell me who that psychiatrist was?
Ms. Carey: The psychiatrist is protected under a publication ban, so I'm not certain if I'm at liberty to disclose that.
It is correct that the psychiatrist that provided the information did it on the basis that he reviewed her entire medical chart, and then he gave expert evidence as to the condition that was diagnosed by a previous psychiatrist, not him, and then he gave his expertise on that.
Senator Batters: But he did not examine her?
Ms. Carey: Correct.
Senator Batters: The article also said one of the other doctors involved "used FaceTime to interview E.F.'' So that doctor also did not meet her?
Ms. Carey: The assisting physician did not meet her, as the physician was in Vancouver and our client was in Red Deer, but that was in addition to other criteria that she utilized.
Senator Batters: You clarified earlier that there were three doctors involved, two doctors and one psychiatrist. Out of those three, it was just one of them that actually examined your client in person?
Ms. Carey: We had the attending physician who had been her physician for approximately 28 years.
Senator Batters: That was the only one of the three that actually examined her?
Ms. Carey: Physically in person, yes.
Senator Batters: That particular physician is a general practitioner?
Ms. Carey: Yes.
Senator Batters: Mr. Attaran, just to clarify, you had earlier referred to now Senator Sinclair's, formerly Justice Sinclair's, position on this, and I pulled this up from the Senate Debates from his second reading speech. At the end of it, he closes with this:
Therefore, while I understand all of the arguments that have been put forward here today on the constitutionality question, I, with respect, disagree with them. I suggest that the bill does not have to comply with Carter, but the bill does have to comply with the Charter and, in my view, the government has acted appropriately to do so.
I wanted to provide that to you because it wasn't just a mere indication that the bill was potentially constitutional but may have some question, but he voiced his opinion that it was.
Mr. Attaran: You were earlier misstating what he said. What he said in that passage you just read to me —
Senator Batters: I read it right from the Hansard.
Mr. Attaran: — is that the Charter applies. Of course Carter is not being re-litigated, is it? I think that's a trite statement.
Senator Batters: It's the closing of his second reading speech from the Hansard Debates.
Senator Baker: Thank you to the witnesses for their excellent presentations.
I'd like to congratulate Mr. Paterson and the British Columbia Civil Liberties Association. They were the ones who brought the Sue Rodriguez case all the way up to the Supreme Court of Canada, and they also brought the Gloria Taylor case all the way up to the Supreme Court of Canada. They deserve a lot of credit.
Also, Ms. Carey, you must be a very competent lawyer, and I congratulate you for your excellent work.
My question is this: A couple of you, at least one, suggested we just vote against this bill, strike it down in the Senate. There are sections of this bill that deal with, Ms. Carey, your case and all of the other reported cases before the Superior Courts of the provinces where the judge was the gatekeeper and the judge would exempt the person administering the drugs. There was a court order exempting that person from the Criminal Code provisions, there was a court order exempting the doctor, and there was a court order exempting the staff that helped the doctor. In other words, it wasn't just a matter of finding whether somebody fit the requirements of the Supreme Court of Canada, but there were all of these other orders that were necessary to prevent criminal prosecution to exempt these people from the provisions of the Criminal Code in which they may be charged with culpable homicide.
I'm wondering where you are coming from, Ms. Carey, as far as us defeating a bill that would leave our doctors and nurses and everybody in a situation where we'd hope that the Attorney General of the province would say to the prosecutors, "Don't prosecute these cases.'' That would be the only solution. Do you agree or disagree with me?
Ms. Carey: If I understand your question correctly —
Senator Baker: I'm sure you do.
Ms. Carey: — what we were dealing with was the four-month exemption period where the court granted a suspension. So the orders needed to be drafted in such a way as to protect those individuals because we were in that suspension period.
My understanding of Carter is that as of today, June 6, those provisions of the Criminal Code are now declared invalid.
Senator Baker: Don't forget the Supreme Court of Canada — it's void inasmuch as — go ahead.
Ms. Carey: As paragraph 127 provides.
Senator Baker: That's right.
Ms. Carey: We were dealing with a different situation because we were dealing with a period where there was a suspension of that declaration of invalidity.
Senator Baker: Don't you agree that all of those Superior Court decisions included exemptions? There was an exemption for this person, an exemption for that person, and that's what this bill is about, the first part of the bill, the exemptions. If we don't pass a bill that gives those exemptions, then some people could be subject to criminal prosecution.
Ms. Carey: I suspect that there is that potential, if there aren't provincial regulations in place.
Senator Baker: Not to prosecute, as the province doesn't control the Criminal Code, but orders to prosecutors.
Ms. Carey: Correct.
Senator McIntyre: Thank you all for your presentations.
Ms. Carey, congratulations for acting on the E.F. case.
I note that E.F. obtained judicial approval for medical aid in dying and, as you know, there's a history of justification for medical assistance in dying. As I recall, Madam Justice McLachlin imposed it in her dissent in the Rodriguez case, and so did the five judges that allowed interim authorization pending Bill C-14.
In your opening address, you made reference to the justice minister, and the justice minister has repeatedly referred to the E.F. case. According to her, in the absence of a legal framework, many doctors refused to provide medical assistance in dying while others provided it to vulnerable people who shouldn't be eligible, such as E.F. Are you suggesting that the justice minister's version of the E.F. case is inaccurate?
Ms. Carey: I'm suggesting that two levels of court dealt with the evidence that we had before it to determine whether or not our client met the eligibility criteria in Carter, that the Attorney General of Canada, and B.C. specifically, challenged the sufficiency of our evidence, and it was determined by both the Court of Queen's Bench and the Court of Appeal that we met that requirement.
In a post-June 6 time period, when there is no federal legislation in place, I can't speak for what health professionals are going to do or not do.
Senator McIntyre: Mr. Paterson, I understand from your presentation that there will be no legal void if Bill C-14 does not pass on today's date. Is there much support in the country for this proposition?
Mr. Paterson: I'm not quite sure what you are asking. It will no longer be a crime for doctors who provide physician assistance in dying according to the guidelines in Carter to provide that assistance. It just won't be a crime.
It's not tethered to the degree of support there is in the country. As Senator Baker has pointed out, that prohibition is void to the extent that it conflicted with the rights of those people.
Moreover, doctors have the guidelines in each of the provinces that, if they comply with those guidelines, will help by providing evidence of their compliance with the law. If there were ever to be a prosecution, I'm sure their having complied with those strict rules would be evidence in their defence.
Finally, for pharmacists and other care providers, when there is no crime, there also isn't a crime to assist in. Although this bill has specific mention of pharmacists, nurses and so forth, any of those that assist a physician in doing that which is not a crime similarly will not be committing a crime, whether or not this bill is passed.
Senator Cowan: I suppose the answer to Senator Baker's dilemma is not to defeat the bill but to fix it. I think that's what we're all trying to do.
My question, Mr. Paterson, has to do with the issue of advance directives. We've been deluged with emails from people telling horrific stories about their situations and those of their loved ones and acquaintances and pleading with us to include some provision in the bill to provide for advance directives, advance requests.
Can you comment on the Charter implications of advance requests and the failure to put something in this bill with respect to that? Mr. Attaran, perhaps you could comment on that as well.
Mr. Paterson: We also think that the failure to put advance directives or advance requests in the bill is constitutionally problematic and that it's quite likely someone that was prevented from having such a request accepted would be successful in a Charter challenge. It's not automatic in the same way as taking protection away from people explicitly covered by Carter is. These additional groups of people beyond Carter are areas where there can be a dialogue. I believe the dialogue has been gotten wrong here.
If you think about it, people have been saying and we've been saying that someone is going to wind up trapped and suffering if they lose the ability to communicate their wishes before the moment where, under this bill, they would qualify — before the moment when they're suffering becomes intolerable, et cetera. So they're left with a stark choice, which is very similar to the choice addressed in the very first paragraph of the Carter judgment: They either have to take their lives prematurely, or they'll be in a situation where they will wind up trapped and suffering with nothing they can do about it.
Although it's not covered by Carter, it is something about which Parliament has got to be concerned. Yes, when you're passing a bill, you have to respect the Supreme Court; but now that you're acting, you've got to look at all the other different arguments that could be made and ensure that the bill is Charter-compliant in respect of all those different things.
We think it's problematic. There are provisions that could have been put in place to regulate that appropriately. We've read a lot of evidence from the rest of end-of-life care that people make decisions and have them respected all the time. The minimal impairment argument would be very difficult in respect of that potential violation.
Mr. Attaran: Let me put this in plainer terms. I totally agree. At the moment, as I wrote in the New England Journal of Medicine when the Carter case first came out, the law allows advance directives that procure death through omission. You can write an advance directive that says "omit to feed me "omit to keep me on the ventilator'' and of course, you'll die. That's allowed. What this bill fails to do, and this is certainly constitutional infirmity, is allow advance directives that procure death by commission rather than omission. You cannot give an advance directive that says "go ahead and give me that lethal dose if I reach a such-and-such state,'' which is going to produce enormous suffering that I don't think a court will have 10 seconds of patience for.
I'll give you an example. Suppose a patient has a pontine stroke. They can become paralyzed from the face down everywhere; oftentimes the only thing they control is the ability to wink, if they're lucky, or move an eye. That's their sole means of communication. This is what's called "locked-in syndrome.'' Those patients can have a pretty normal life span of 10, 20 or 30 years, so they're not going to be eligible under the bill because their death is not reasonably foreseeable. But boy do they have a lousy life.
If they had an advance directive before their stroke, they would only be allowed it such that "Should I get pneumonia and be in critical care, disconnect my feeding, disconnect my ventilation and let me die.'' But they can't have an advance directive that says "in this terrible locked-in state of misery, please give me the way out.'' This omission versus commission distinction is so meaningless that thousands of angels can dance on the head of its pin. The House of Lords rejected the idea 20 years ago, and our Supreme Court's reasoning was hardly generous to that distinction, and yet here it is in Bill C-14.
Senator Jaffer: First, Ms. Carey, on Senator Batters' question, normally an expert does not physically examine a patient. They normally look only at the chart of the person to give an expert opinion. Is that true?
Ms. Carey: I must clarify that I am not typically a lawyer that deals with health law, so I can't really respond to that except in my experience. The Court of Appeal accepted that in this particular situation the psychiatrist had enough expertise in this area to recognize whether or not he needed to physically examine the patient before he made his recommendations and provided his affidavit evidence. He did not; and the Court of Appeal accepted that evidence.
Senator Jaffer: Mr. Paterson, to Senator Baker's questions, does the Attorney General have to tell a prosecutor to prosecute over abortion at the moment?
Mr. Paterson: No. To be clear, the provinces would have responsibility over prosecutions outside the Controlled Drugs and Substances Act and other federal acts. There aren't attorneys general setting out to prosecute doctors on abortion in the absence of a federal or provincial law.
Senator Plett: Ms. Carey, I wasn't aware of some of the facts that Senator Batters brought up in your case about the psychiatrist or the doctor not physically examining your patient.
Clearly it's evident in that case that there are medical practitioners available to help. Would you support what I am trying to get, which is conscientious objection protection for people that do not want to take part in this? Do you believe that we would not have emergency cases where it would not be sufficient if we allowed doctors and institutions to bow out of this if they chose to?
Ms. Carey: I can advise that the reason we had to utilize electronic technology to interface between our client and the assisting physician was that we had to go to Vancouver to immediately find someone in a position to assist.
In terms of the conscious rights, it would be my opinion more than anything else. As a lawyer, I'm not obligated to take on any client that I don't feel is being reasonable or take on any such case; and I would assume it would be the same for health care practitioners.
Senator Joyal: Ms. Carey, we were told by the Minister of Justice that one of the main reasons the Justice Department intervened in the case of E.F. in the Court of Appeal was because the proof, in their opinion, was not sound enough to justify medical assistance in dying. In fact, when I read the factum of the Justice Department, it's more the challenge that E.F. would have access to medical assistance in dying without being in a terminally ill condition.
The brief, especially paragraphs 16 and 17 and the last sentence of paragraph 17, says that the court's own understanding of the reach of the term "contemplates a situation at the end of life.''
That seems to have been the real reason behind the Government of Canada Justice Department decision to intervene in the case. Was it the same perception that you got from the case — that it was to challenge the interpretation of Carter in a limiting way, that is, to limit it only to people who are terminally ill?
Ms. Carey: Fundamentally, that was the goal of Canada, although they did bring up the issue of stale evidence. But they didn't pursue that significantly. A portion of their focus was the psychiatric aspect of our client's condition, which they argued more strenuously at the Court of Queen's Bench level, less at the Court of Appeal. At the Court of Appeal, the focus was on the fact that our client did not have a terminal illness and therefore didn't qualify.
It was B.C. that had some issues with the sufficiency of our evidence. As I stated previously, both the Court of Queen's Bench justice and Court of Appeal justices found that our evidence was not insufficient.
Senator Joyal: On the basis of your experience with the Canadian courts in relation to constitutional issues, considering the weight of evidence which may exist in relation to the constitutionality of Bill C-14, what is the probability that there will be a challenge very soon after that bill is enacted, if it is enacted, without the amendments that one would consider being sufficient to make it constitutional?
To be more precise, would the B.C. Civil Liberties Association be involved in a future challenge of Bill C-14 if it is not changed from the way it is currently drafted?
Mr. Paterson: We have fought this for many years and spent a great deal of energy and money to achieve the victory we did. We would be very displeased if this bill were the result of all of that work.
We think it's inevitable that there will be a legal challenge. We are going to wait and see what the Senate has to say about it. However, we are an organization with a history of litigating on issues of importance to us.
Senator Cowan: Is that a yes or a no?
Mr. Paterson: I don't have the authorization of my board to say one way or the other. My board would take such a decision. We are waiting to see how this goes in the coming weeks.
Senator Batters: Mr. Paterson, in your opening remarks you were indicating the different framework in place today with the different provinces and territories. Did you say two territories do not have regulatory frameworks in place, only one does? Is that correct?
Mr. Paterson: I have seen Yukon's. The Northwest Territories have promised in the media to have them out by today. Today is not over yet. I have not seen them. I last checked a few hours ago. Nunavut was the only one that stated they were hanging on to see what happened in Bill C-14.
Senator Batters: So they may not bring a regulatory framework until Bill C-14 is in place?
Mr. Paterson: Nunavut indicated they would wait, but even in Nunavut, the Carter decision applies. The normal obligation of physicians under their regulatory body applies. It is not an area of lawlessness, either. It is governed in the way that other end-of-life and serious decisions would already be governed for the medical profession in that territory.
Senator Baker: I've always found Mr. Paterson to be admirably cautious in his answers to the Senate committee. I admire that.
The Ontario government announced today they were going to take measures to ensure that no one will be prosecuted in the process of physician-assisted death in the Province of Ontario. This was discussed as a possible solution, just as it was after the Senate defeated the abortion bill. I remember because I was a parliamentarian at that time.
I congratulate you on your association's Gloria Taylor case that you initiated. The other litigants joined after you started. Your association started the process.
I read the 380 pages, at 10 point print. I wondered why at the end of the case, at paragraph 1414, the second requirement for Gloria Taylor to receive physician-assisted death was that she prove by a letter from her physician that she was terminally ill. Why did the trial judge come to that conclusion that she had to prove she was terminally ill as a requirement to receiving physician-assisted death? You don't have to answer that if you're not completely familiar with it.
Mr. Paterson: I have to bring up the case. I can't remember the paragraph reference you cited. It was clear before Madam Justice Smith that Gloria Taylor had a terminal illness. There she was dealing with the context where it remained criminal.
I can only speculate. She's carving out for the first time a constitutional exemption. That may indeed have been something that she asked the patient to show. The Supreme Court, of course, didn't require that, and so for what it's worth, she had that in there and it's no longer a requirement.
Senator Pratte: Mr. Paterson, earlier in the day an official of the Justice Department was asked about the use of the word "incurable'' in place of the word "irremediable.'' The official answer that "incurable'' was a synonym and was used because it was easier to understand or it was a layman's term, but it was in fact a synonym for "irremediable'' and meant, in this official's view, exactly the same thing.
Is that your view, that "incurable'' means exactly the same thing as "irremediable?''
Mr. Paterson: Senator, that is not my view. Earlier in my legal career when I was in a litigation, we had an agreed statement of facts. The other side changed a word. I didn't think much of it, and I thought it meant much the same thing. When we got to the hearing, I could see why they changed that word.
This word is different. We have to remember that "irremediable,'' in the Supreme Court judgment, wasn't just irremediable. It also said irremediable does not require the patient to undertake treatment that is not acceptable to the individual. To change the word and to take away that proviso, according to the precepts of statutory interpretation, just has to mean something different. There's a real consequence to that.
One of the people involved in our case had late stage 3 anal cancer. She already had rounds of radiation therapy. She was told further rounds might succeed in eliminating her cancer, but to do it they would have to irradiate her vulva, anus and vagina. Her sexual organs would be in a state of permanent pain, dysfunction and collapse. Even if the treatment succeeded in eliminating the tumours, she would be incontinent. Everything that could flow from a successful treatment was abhorrent to her.
So she said she didn't want to go through that last treatment. Yet, you could have said well, there's been some success with that, that's curable. She would be trapped by this definition. The very earnest doctor who wanted to help might say she could have a chance with another go round here. We're forcing people to undertake treatments. We're forcing upon peoples' bodies interventions that they do not want as a gateway to accessing a right that the Supreme Court has already said they're entitled to. It's offensive, and it's going to cause terrible, terrible suffering.
The Chair: Thank you witnesses, all of you. I very much appreciate your appearance and testimony. Thank you for being here.
Before we adjourn, members, if you're planning any amendments or observations to bring forward at tomorrow's meetings, it would be helpful if you could forward them via email to the clerk for preparing our report. It could aid the process. Just a reminder that tomorrow's meeting is back in the East Block in our regular meeting room beginning at 9 a.m. sharp.
Senator Cowan: Could I make a suggestion? We're all trying to do the same thing here. It's important as we go forward this week that we manage the process of amendments and discussions in a rational way.
I can't see any point in surprising people at the last minute with amendments, and so I would propose that we might circulate proposed amendments to everybody so that we would all see where we are. Not with a view to persuading one another that this is a good amendment or I'll vote for your amendment if you will vote for mine, but we would come up with a rational process in the order in which we would be proposing amendments so that it would make sense at the end of day and that we come up with a better bill. I would be quite willing to circulate my proposed amendments, and I would welcome the same from everybody else.
Senator Plett: I certainly have no argument with Senator Cowan on that, but are we planning on presenting amendments at committee, or are we waiting until third reading, or is that up to us?
The Chair: That is an interesting question. I have no answer for it. It was indicated to me that the amendments might be left until third reading, but I'm not party to those decisions.
Senator Cowan: There were certainly some discussions that it might be better because that would enable all senators to be involved in the discussion. My own preference is that we deal with amendments at third reading rather than here, but my proposal to circulate amendments would apply in either case.
Senator Jaffer: Most of us have used the help of the Legal Clerk. Maybe we should just phone the Legal Clerk. Everybody has to do it, but to send them to you so you have the right copies, if that's okay.
Senator Joyal: Very quickly, Mr. Chair, I think it might be helpful tomorrow that maybe in camera — normally we would do that when we prepare a report — any one of us who has the perception that an amendment would be needed, even though we don't have the text of the amendment, at least we would flow generally the objective of the amendment. That would share the common positioning within the members of the committee.
It would be helpful, certainly, if we come to the conclusion that it would be preferable to wait until third reading to formally introduce the amendments.
Senator Baker: Mr. Chairman, it's up to each individual senator whether they want to amend in committee or amend at third reading; I understand that. Yes, the requirement in the Rules is that when we are preparing the report, which is at the end of the third reading, each clause, yes, you must go in camera.
I agree with Senator Cowan that in the spirit of disclosure, of Stinchcombe, that you disclose what your amendments are so the rest of us who are not proposing amendments would have an opportunity to examine those amendments as it relates to the law to check our case law to find out if they are legal.
The Chair: The request has been made, and we'll leave it up to individual senators.
Senator Batters: I want clarification, because what Senator Jaffer was indicating, it will be up to individual senators if they wish to circulate them, not an instruction to the Law Clerk.
Senator Jaffer: No, no.
The Chair: No, we will leave it up to individuals.
Senator Cowan: I'm going to circulate mine.
(The committee adjourned.)