THE STANDING SENATE COMMITTEE ON LEGAL AND
OTTAWA, Tuesday, May 10, 2016
The Standing Senate Committee on Legal and Constitutional Affairs
met this day at 2 p.m. to examine the subject matter of Bill C-14, An Act to
amend the Criminal Code; and to make related amendments to other Acts (medical
assistance in dying).
SenatorBob Runciman (Chair) in the chair.
The Chair: Good afternoon and welcome, colleagues, invited
guests and members of the general public who are following today's proceedings
on the Standing Senate Committee on Legal and Constitutional Affairs. Today, we
are continuing our hearings for our pre-study of Bill C-14, An Act to amend the
Criminal Code and to make related amendments to other Acts (medical assistance
For our first hour, we have with us a panel of legal experts.
From the Canadian Bar Association is Kimberly Jakeman, Chair of their End of
Life Working Group; and Tina Head, Lawyer, Legislation and Law Reform. Also with
us today are Dwight Newman, Professor and Canada Research Chair in Indigenous
Rights, College of Law, University of Saskatchewan; Hamish Stewart, Professor,
Faculty of Law, University of Toronto; and Randal Graham, Professor, Faculty of
Law, University of Western Ontario.
Thank you all for being with us today. I understand the CBA is
going to lead off with opening statements. The floor is yours.
Tina Head, Lawyer, Legislation and Law Reform, Canadian Bar
Association: Mr. Chair and honourable senators, thank you for inviting the
Canadian Bar Association to appear today. The CBA is a national association of
36,000 lawyers, with a mandate to promote improvements in the law and the
administration of justice. The CBA's End of Life Working Group is mandated to
advise the CBA on end-of-life issues, including medical assistance in dying.
My colleague Ms. Jakeman will describe the working group in more
details and present the CBA's submission.
Kimberly Jakeman, Chair, CBA End of Life Working Group,
Canadian Bar Association: You have our written submission, so I will make a
short verbal submission. Afterward, please ask me questions with respect to
The CBA working group draws on the expertise of lawyers from all
regions of Canada, including lawyers in private practice, the public sector and
in-house counsel. They are from diverse areas of legal practice, including
criminal justice, constitutional and human rights, health law, wills and estates
law, elder law, children law, privacy law and dispute resolution.
Our clients include individuals seeking assistance in dying,
planning for life and death transitions. They include health professionals,
social workers, vulnerable persons, health and long-term care facilities,
regulators and governments.
The CBA working group would like to comment on three aspects of
the bill: first, the eligibility criteria; second, the scope of exemptions; and,
third, the gaps in the safeguards.
The first aspect is the eligibility criteria. The CBA supports
amendments to the Criminal Code that would align with the Supreme Court of
Canada's decision in Carter, and it is our view that Bill C-14 falls
short of that. The proposed subsection 241.2(2) defines “grievous and
irremediable” and four interrelated criteria that are key to eligibility.
The criterion that a person's natural death has become reasonably
foreseeable has been the subject of much debate, but the working group believes
that the entirety of that section is problematic. It narrows the language that
we believe was carefully and intentionally chosen by the Supreme Court of
Canada, and it introduces restrictive concepts of which the court was aware but
chose not to include in the Carter decision. In practice, the definition
limits medical assistance in dying to a person in the advanced stages of illness
and whose death is clearly on the horizon. It is the CBA's position that
subsection 241.2(2) should be deleted from the bill in its entirety.
With respect to exemptions, the working group leaves that medical
assistance in dying is best approached as one option in the continuum of care.
As a practical matter, that's how conversations of end of life take place. The
language of the Criminal Code is not suited to this reality. At the one end of
the spectrum, it prohibits counselling a person to die by suicide, and yet at
the other end of the spectrum, conversations in the context of providing medical
assistance in dying as set out narrowly in Bill C-14 are protected. But there is
concern about the middle ground: the uncertainty of what falls in between where
nurses, social workers, lawyers, family and friends talk with patients, clients
and loved ones about life-care options, including medical assistance in dying.
We encourage amendments to the bill to ensure that Canadians need
not fear criminal liability in those circumstances.
The third aspect is with respect to safeguards. There are several
measures introduced as safeguards, and the working group believes that some of
these require attention. Most specifically, proposed subsection 241.2(7)
incorporates provincial standards of professional care into the Criminal Code,
and we think it's unwise. It treads on provincial jurisdiction and creates an
uncertainty that will inevitably cause a reduction in access to services and may
lead to a difference in criminal standards across the country.
The working group recommends that that provision be deleted.
With respect to the issue of consent, proposed paragraph
241.2(3)(h) refers to the need for express content immediately before dying.
This requirement may have the perverse effect of having someone suffer
intolerably or refuse to take pain medication until the end or, alternatively,
be withdrawn from a sedation to ensure that they can give clear instructions
immediately before death.
There is a case out of Alberta's Court of Queen’s Bench called
HS (Re). It's a recent case. In that case, the court recognized the
physicians having a continuing obligation to obtain genuine, ongoing and
informed content to treatment. The court decided in that case that it was best
left to the physicians to determine how best to comply with this requirement.
The CBA working group recommends that that section be deleted
from the bill.
We have also made some technical recommendations in our
Finally, I would like to add that the CBA working group
appreciates that the minister would like time to study situations of mature
minors, persons with mental illness and advance requests. However, for the sake
of persons whose constitutional rights are held in abeyance, we encourage firm
and early timelines for these studies.
On behalf of the working group, I appreciate your attention and
the invitation to appear before the committee. Thank you.
The Chair: Thank you.
Dwight Newman, Professor and Canada Research Chair in
Indigenous Rights, College of Law, University of Saskatchewan, as an individual:
Good afternoon. Thank you for the opportunity to appear before the committee. I
appear as a professor of law and Canada Research Chair in Indigenous Rights and
constitutional and international law at the University of Saskatchewan. My
submissions are based on my ongoing work on constitutional law issues.
Before the committee this afternoon, I'll make four fundamental
points. They're developed further in the written submissions that I've sent to
the committee, although I'll try to speak to some aspects of them during my
comments this afternoon.
I'll just run through the points quickly and then return to them.
The first is that the Carter judgment has more limited implications for
Parliament's potential applications than some have suggested.
Second, Bill C-14 appears to go beyond Carter in some ways
that may raise concerns and may well adversely affect the constitutional rights
of other persons beyond those contemplated as benefiting from the Carter
The third point that I'll raise is that Bill C-14 raises
questions potentially worthy of significant further consideration in its impacts
on indigenous communities.
The fourth point is a reminder that Parliament may actually have
more options in respect of the June deadline than has been generally discussed.
To turn to those four points, the first point I would make is
that the Carter judgment is not legislative in character. That's simply
not the role of the Supreme Court, and it's not the role of Parliament to
abdicate to the Supreme Court as if it were a legislative body. So the specific
wording of the Supreme Court of Canada judgment needn't be entirely
determinative. Obviously, there is a conclusion there on certain constitutional
points, but the court's declaration is not a statute, and it's ultimately
Parliament's responsibility to craft a statutory regime that meets the
objectives that Parliament determines to be most appropriate.
There would be several points that support that basic claim. I
would say it's consistent with the broader dialogue theory on the Charter that's
discussed on a widespread basis.
A second point that I would make is the law concerning the
interaction of section 7 of the Charter and section 1 of the Charter — the
limitations provision — has shifted recently and since the Carter
decision, arguably last week, in ways that may have altered the way in which one
might think about what is going on in Carter. I would simply mention that
although Carter did see a discussion to some extent of the Oakes
test on the limitation of rights in the context of a section 7 claim, the
Michaud decision of the Court of Appeal for Ontario has made very
clear that a section 7 infringement can be justified under section 1. The
Supreme Court of Canada on May 6 — a few days ago — has declined leave to appeal
from that judgment, thus reinforcing the point. So I think that's worthy of
The second aspect I will refer to is that proposed Bill C-14 sees
Parliament taking on the responsibility of going beyond Carter in certain
ways. In many ways, the bill is focused on end-of-life situations with respect
of the Carter terminology, but there are certain wider applications that
raise concerns for certain vulnerable groups, at least potentially.
For example, the particular way in which the reasonable
foreseeability of death requirement is unconnected to other provisions of the
law essentially says that someone whose death is reasonably foreseeable but who
may be suffering from an unrelated condition faces eligibility under the law.
One area of concern here would be someone with a mental illness without any
associated physical illness who simply happens to be older and thus has a
reasonable foreseeability of death but who may be contemplating assisted suicide
simply in the context of a mental illness.
It's not clear that the court was contemplating that at all in
Carter. If that issue went back before the court, I think one would argue as
to whether it’s distinguishable, and the bill that Parliament's proceeding with
takes a fairly clear view on that.
Within the submission, I refer to some other considerations here,
such as the possibility of individuals shopping across jurisdictions and
categories of medical service providers in ways that probably weren't expected
in the immediate aftermath of Carter. I won't dwell on those, but I want
to turn to a very important further consideration. That's with respect to
I want simply to say that the external panel that considered
possible legislative responses to Carter received fairly limited bits of
evidence related to assisted suicide in indigenous communities, but what it
received raises important issues. As noted in the external panel's report,
indigenous communities have individuals within them with a mixture of views on
assisted suicide, but it's an issue that, for many people in indigenous
communities, evokes trauma. There were expert expressions of concern of the
potential for increases barriers between indigenous communities and health care
providers that might arise from the existence of an assisted suicide regime.
I'll try to wrap up fairly quickly, but I do want to emphasize
that in wrapping up matters so quickly on this law, here is something that's
being quickly disregarded in some respects. Does the regime created by
Carter and Bill C-14 effectively validate despair as the response to
situations of various kinds of suffering? Does it validate suicide in ways that
might have highly pernicious cultural effects in the context of indigenous
communities? I'm not an expert who can speak to those, but I think that more
should be heard from indigenous communities than has been heard thus far. It's
ironic that there would be an absence of that on the very day when ministers are
down in New York, speaking to these matters in new ways.
I'll just say very quickly — and it's addressed further in the
written submission — that there are more options on “timeline” than may have
been noted. One of the Supreme Court justices hearing the extension application
in Carter specifically, in oral argument, with nothing contradicting it,
said that section 33 of the Charter would be available to extend the timeline. I
just want to highlight that there are options. It's Parliament's choice on what
to do on these things, and I wanted to present a few considerations.
The Chair: Before I introduce Professor Stewart, I want to
remind you that we only have one hour. When you run over, especially
significantly on the opening statements, it leaves limited time for members to
ask you questions.
Hamish Stewart, Professor, Faculty of Law, University of
Toronto, as an individual: Thank you, Mr. Chair, honourable senators. I'm
very grateful to the committee for the opportunity to speak with you this
afternoon. I'm here as an individual, as a professor of law, who is interested
in constitutional law, specifically in the law of section 7 of the Charter.
My comments this afternoon are directed primarily at the question
of whether Bill C-14, assuming it passes in its current form, would likely
survive a constitutional challenge. In other words, is it a constitutionally
sufficient response to the Carter decision? I think it is a
constitutionally sufficient response to Carter, which is not to say that
there are not other responses which might also be constitutionally sufficient.
As we know, Carter has told us that section 241(b) of the
code was unjustifiably over-broad in light of its own purpose. Its purpose was
to prevent vulnerable persons from being induced to commit suicide at a time of
weakness, the court said, but since this section banned assisted suicide,
medically assisted death, in all cases, regardless of the person's particular
situation, the provision was constitutionally over-broad.
Bill C-14 responds to that. As you know, it sets up four criteria
for accessing medically assisted death, and it sets out eight safeguards to
ensure that the four criteria are satisfied in particular cases.
It's quite right to say, as has already been said, that the
language of Bill C-14 is not the same as the language of Carter, but the
constitutional question is whether it's over-broad in section 7 terms. Put
another way, would Bill C-14 prevent any individuals who satisfy the criteria
set out in Carter from accessing medically assisted death? I think it
probably would not have that effect.
With respect to the definitional criteria in proposed paragraphs
241.2(1)(b) and 241.2(1)(d), it's true that those criteria do not
precisely track the language in Carter, but, in my view, they are
constitutionally permissible safeguards to ensure that people who are, as the
court said, tempted to commit suicide at a moment of weakness are not tempted to
Another point to emphasize — and Professor Newman has already
made this point — is that it may well be, notwithstanding my view on this, that
Bill C-14 is over-broad because the Supreme Court has laid down, in its recent
case law, a very individual-focused test for deciding whether a law is over-broad.
So if a constitutional applicant is capable of identifying even one person who
satisfies the criteria set out in Carter
and who is unable to access the medically assisted death regime under Bill C-14,
then it would be unconstitutionally over-broad.
But, as Professor Newman has said, the law on the relationship
between section 1 and section 7 of the Charter has shifted in the past few
years, particularly in relation to laws that are unconstitutionally over-broad.
The court has indicated in Carter and in Bedford, and the Ontario
Court of Appealin Michaud, as was said, that it may be possible
to justify an over-broad law under section 1 by invoking evidentiary
considerations and policy considerations that are not to be considered under
section 7 of the Charter.
So, as I have said, the government's argument in Carter
that a blanket ban was required because it was too difficult to sort out the
vulnerable from the non-vulnerable was rejected in the context of section 1 in
Carter itself, but the court said, “Maybe Parliament can design a scheme
that would enable the sorting of the vulnerable from the non-vulnerable.” If
that scheme is somewhat over-broad, it may nonetheless survive a constitutional
challenge as a justified limit on section 7 rights if the government can satisfy
the court that it's the best that can be done to separate the vulnerable from
the non-vulnerable who want to access the assisted suicide regime.
So, in my view, the proposed regime under Bill C-14 would survive
the constitutional challenge.
Thank you for your attention.
The Chair: Thank you very much.
Randal Graham, Professor, Faculty of Law, University of
Western Ontario, as an individual: Thank you for inviting me to appear
today. It's always an honour to be of service during the legislative process.
I've been asked to provide testimony today concerning Bill C-14
from a statutory interpretation perspective. Rather than commenting on the
policies of the bill, I am present to comment on technical issues concerning the
way in which Bill C-14, if enacted, would be interpreted by the courts. In
particular, I've been asked to focus on the preamble to Bill C-14 and the role
that it might play in the interpretation of the operative provisions of the
I'd begin by saying that preambles are important. According to
section 13 of Canada's Interpretation Act:
The preamble of an enactment shall be read as a part of the
enactment intended to assist in explaining its purport and object.
A preamble enjoys the same status as the statute's operative
provisions. It's part of the act. It's considered and voted on by Parliament,
and it's primarily used as a means of discerning the statute's purpose.
This plays a key role in the process of statutory interpretation
as courts are directed by section 12 of the Interpretation Act to use the
purpose of legislation as a guide when interpreting legislative text.
A statutory preamble together with the purpose that it might
reveal should not be taken lightly. The Supreme Court of Canada has made it
clear that in some instances, at least, where we find a conflict between the
statute's purpose and that statute's operative language, the purpose may
actually trump the literal language of the act, such that the court will either
strain or even override the literal language of the act to make it conform to
the act's purpose. As a result, in certain instances the purpose revealed by a
statute's preamble might be regarded as even more important than the text of the
statute's other provisions.
Of course, not all preambles are created equal, and some are more
useful and effective than others. The preamble to Bill C-14, as currently
drafted, is one that I would consider both important and potentially useful to
the courts. First, the preamble recites a number of the social policies that
have motivated Parliament to act. Moreover, several of those policies and some
of the turns of phrase in which they're expressed are drawn directly from the
text of the Supreme Court's decision in Carter v. Canada, suggesting that
part of the bill's purpose is to adopt or mirror the views expressed by the
court in that case. This increases the chance that Bill C-14 will be interpreted
in a way that conforms to the views expressed by the court in Carter.
If you'd like to explore this in your questions, I could point
out a few instances in which the preamble of Bill C-14 might in fact be used to
colour the meaning of operative provisions of the bill.
One wrinkle in this analysis relates to the fact that Bill C-14
is an amending act rather than stand-alone legislation. If Bill C-14 is passed,
it will not operate as a stand-alone piece of law but will instead change the
content of other laws, including the Criminal Code. Once the amendments created
by an amending act are implemented, the amending act is considered spent,
meaning that for practical purposes, the amending act has no further legal
operation. At that moment, much of the substantive text currently found in
Bill C-14 will become part of other laws — laws that will not feature the
preamble currently found in Bill C-14. The preamble itself will not be
incorporated into any continuing legislation and will exist only in the spent
How does that affect matters? Consider the components the
Bill C-14 that are to form part of the Criminal Code. The Criminal Code does not
have any preamble at all, let alone one that corresponds to the text of
Bill C-14's preamble. This might raise the question of whether the preamble to
former Bill C-14 could then be used to interpret those amended sections of the
The answer to that question is a definitive yes. Although those
sections, in a sense, will be divorced from the preamble currently found in
Bill C-14, that preamble would remain a resource available to the courts in
their interpretation of the relevant Criminal Code provisions. In a sense,
courts would make the same use of the preamble of a spent Bill C-14 that they
would of the preamble of current operative legislation. This use of spent
preambles has already occurred in a number of cases.
As a result, it's clear that the text of the preamble is
important. It's likely to assist courts in establishing the purpose of the
bill's operative language, even after the operative language is incorporated
into other enactments. This can have a profound effect on the meaning of words
or phrases found in the operative provisions of Bill C-14.
That concludes my opening remarks. Thank you.
Senator White: Thanks to each of you for being here. My
question would be to Mr. Newman.
We had some discussions previously around the nurse
practitioner/medical practitioner piece. It has to be one of each or two of one
of those groups that would approve it. The nurse practitioner program is
responsible to the provinces, but not every province is the same. In some
provinces they have certain authorities that they would not have in others.
Would you put your mind to whether it would be helpful if legislatively it
required that one of the two be a medical practitioner?
Mr. Newman: I think that could be helpful. There's
obviously a reason why nurse practitioners have been included in the bill.
That's been cited in terms of the limited availability of physicians in some
remote communities. An amendment requiring one individual to be a physician
would be more in keeping with what the court spoke to in Carter in terms
of the level of qualification of the individuals involved and the level of trust
that there is with physicians.
In saying that, I say nothing against nurse practitioners, but I
simply say that their presence in the bill would have surprised the Supreme
Court of Canada.
Senator White: Mr. Stewart, do you have a thought on that
Mr. Stewart: I do not have any particular thoughts about
the merits of that question. However, I would point out that it is another
example of the interaction between federal criminal law and provincial
jurisdiction over health, which Ms. Jakeman mentioned. Without expressing an
opinion about her reservation on that specific point, it's inevitable in
legislation of this kind that there would be some delegation to the provincial
scheme because the provinces license doctors and nurse practitioners and set
standards for their behaviour.
Senator Baker: Thank you to the witnesses for their very
excellent presentations. In the time available to me, I have one question,
Mr. Chair, which I'll put to the Canadian Bar Association.
You presented the picture that the decision of the Supreme Court
of Canada dealt with more than the condition of Gloria Taylor. As I read the
trial judge's decision, it dealt solely with the medical condition of Gloria
Taylor, as did the decision of the Supreme Court of Canada, as I read it.
She was terminally ill, yet you say in your presentation that
this bill goes beyond the Supreme Court of Canada decision. How do you square
that with paragraph 66? You mention in your argument “grievous and irremediable
condition.” Paragraph 66 of the Supreme Court of Canada decision said that
somebody in a grievous and irremediable condition would qualify for palliative
sedation. That's end of life. That's two or three days; being put unconscious
would qualify. Then at paragraph 127 of the Supreme Court of Canada decision,
the two last sentences state that they're dealing only with the facts of this
particular case. In other words, it's the facts of Gloria Taylor,
somebody who was facing death; and you agree. How, then, do you justify an
argument that says, “Oh, no, this bill really goes beyond the Supreme Court of
Canada decision and is more restrictive in nature”?
Ms. Jakeman: First, the facts of Carter did not
relate solely to Gloria Taylor. They related to Kay Carter, who, I don't
think, would fit within Bill C-14.
Also, at paragraph 1159 of the trial judgment, Judge Smith
actually refers to the group of people that were considered in her Reasons for
Judgment. It was far beyond simply the facts of Gloria Taylor.
There are many affidavits, deponents before the court. Mr. Arvay
has already been here and spoken about this issue. It wasn't only about Gloria
Taylor's condition. A much broader group of people was addressed by the court.
Senator Batters: Thanks to all of you for being here, and
a particular welcome to my fellow Saskatchewanian, Professor Newman.
I read this in your submission and you mentioned it briefly in
your opening remarks: I would like to you to speak a little more about an
elderly individual who has mental illness as the sole basis for seeking assisted
suicide and could be eligible for assisted suicide in your opinion because their
death, as they're elderly, could be reasonably foreseeable. Your written
submission indicates that disallowing mental illness as a sole basis should be
in the operative text of the bill, not just in the preamble. I've mentioned that
before, as well, because it's my view that putting such crucial elements in a
preamble is not a good way to draft legislation. Could you expand on those
Mr. Newman: We've heard very important evidence from
Professor Graham this afternoon in terms of the preamble becoming spent and not
becoming part of any of the pieces of legislation that the bill is amending.
In light of that, I don't think that particular phrase in the
preamble is much of a reassurance versus the actual text of the legislation. The
text doesn't say that death needs to be reasonably foreseeable as a result of
the illness in question; it just says that death needs to be reasonably
foreseeable. That's obviously open to interpretation, and the courts might find
some way that that doesn't refer just to elderly people, but there will be some
people whose death is reasonably foreseeable and whose only medical condition is
a mental illness. It's not at all clear that that's a direction in which we
should be going in light of the wish in the preamble. A conflict arises there.
Drawing upon Senator Baker's point, I'd highlight paragraph
126 in the Carter judgment, which says that:
To the extent that the impugned laws deny the s. 7rights of people like
Ms. Taylor they are void by operation of s. 52of the Constitution
The Carter judgment seems to have been fairly restricted
to those like Ms. Taylor, and I don't see any evidence that the court was
contemplating the extension of assisted suicide to those whose only medical
condition was a mental illness. Obviously that raises very complex issues.
Senator Batters: You had a brief opportunity to tell us in
your opening statement about R v. Michaud, but I think you brought
up an important point. Could you expand upon the idea that section 7
infringement can be justified under the section 1 Oakes test? Just
a few days ago — and thanks for the very timely information about this — the
Supreme Court of Canada refused leave on that, so that judgment stands. Could
you tell us more about that and how it impacts this particular issue?
Mr. Newman: To be clear, Michaud is a case in a
regulatory context, but it is a case where a court has found a section 7
infringement justified under section 1 of the Charter.
Lawyers on the committee will be very familiar with the fact that
the Supreme Court not granting leave doesn't definitively mean that they agree,
but it also means that they are leaving the decision to stand. If they thought
that this was an objectionable principle on something so fundamental, one might
have thought that they would grant leave and hear the case.
These are challenging to interpret, but I think we're starting
to see a position emerge in Canadian law now where section 7 infringements are
being recognized as potentially justifiable under section 1. This was a highly
contested point before, and it's something that is emerging as a position now.
There was some argument along these lines in the Carter
decision. I'm not sure that counsel might not have said more on it, even to
justify the prior regime at that time, had they known how fully section 1 would
be developing. Certainly, any legislation that Parliament passes now will have
the opportunity to have a section 1 justification put before the courts as to
whether there are policy reasons broader than those that would fall just under
section 7 that would justify some of the limits that may exist within the law.
In terms of caution on things like mature minors, I think there
are many ways to justify that under section 1.
Regarding caution on situations of various sorts that the bill
doesn't go into, I think this fits with Professor Stewart's comments that the
bill would be constitutionally sustainable, and I raise the question as to
whether even more limits could be put.
Senator Joyal: I'd like to address my question to Ms.
Jakeman and maybe also ask for comments from the other witnesses.
The court has struck down section 14 and 241 of the Criminal
Code on the basis that it was a too-broad prohibition under section 7 of the
Charter. Now we have a bill that reintroduces a criterion that is “reasonably
foreseeable” to exclude all those who are not dying. It is essentially the same
argument that the government has pleaded in court. If it is impossible to make
the distinction between those whose death is not foreseeable, even though they
suffer from a grievous, irremediable and intolerable personal condition, then we
will exclude all of them.
I have the impression that, in fact, we are making the same
parallel judgment in relation to foreseeable death than the government has been
making in the court and that the court refused. How do you fare with that?
Ms. Jakeman: I think the CBA would take the position that
that's correct. Terminal illness was front and centre in the government's
argument in Carter, and it could have been part of the definition that
the Supreme Court of Canada used and chose not to.
Now we see legislation that goes back to the government's
argument in Carter, and I think that certainly is a problem.
I think paragraph (2)(d) — reasonably foreseeable death —
is a really difficult provision for the legal community, as much as it's a legal
term. That part of the definition is very ambiguous and unclear and is really
concerning to the CBA.
Mr. Graham: Looking at paragraph (2)(d) — “death has
become reasonably foreseeable” — not to trivialize matters, but all of our
deaths are reasonably foreseeable by dint of the fact that we are mortal. It
can't mean that, so the question then becomes how, and by reference to what
other materials, do we narrow it?
One could track some of the language of the preamble — the point
of me being here in the first place — that follows very closely the language
used by the court in Carter and try to minimize the impact of the
language “reasonable foreseeability of death” in order to minimize the rights
articulated by the court in Carter. That would be one approach.
Another approach would be a maxim of interpretation called noscitur
a sociis, or to know a thing by its associates, which says that where
you have general language it should be narrowed so as to have a cognate meeting
with those other words with which it is associated in the same provision.
In this particular instance, “death has become reasonably
foreseeable” is within a definition of a person having a “grievous and
irremediable” medical condition, suggesting that it's possible that the foreshortening
of one's life must come from that particular medical condition.
If one wanted to interpret this narrowly so as to intrude as
little as possible into the rights articulated in Carter, one might say
that your particular medical condition has had some impact on your lifespan; a
physician might say that your lifespan is going to be shortened as a result of
this. We don't know how much it's going to be shortened and we don't know
particularly when your date of death might arise, but it's been shortened in
some non-trivial way by having this condition.
So we don't know how that will be interpreted. Generally
speaking, a vague legislative phrase like that is left to be determined by the
official processers of that: the courts or administrative bodies charged with
enforcing a particular provision. But there are a number of ways, as I've said,
that one might choose to narrow that.
Senator Joyal: Then it could not be interpreted under
proposed subsection 241.2(7) of the bill — “reasonable knowledge, care and
skill“ — and left to provincial legislation or regulations. So we're going
to have a checkerboard across Canada with one province interpreting foreseeable
death in one way, another one interpreting it differently and another not
interpreting it at all. We won't have the kind of national approach that
legislation under the Criminal Code should have to make sure that everyone has
the same measure of rights.
Mr. Graham: That is arguable. I would not be surprised to
see a court hold this is a national standard, particularly given the language in
the preamble about this being an important issue across Canada, and that it
might have to be interpreted uniformly across the country. Again, in statutory
interpretation there are no guarantees.
Senator McIntyre: Thank you all for your presentations.
Professor Stewart, in your brief, you write that the centrepiece
of Bill C-14 is proposed section 241.2 of the code. As we know, that
section falls into two categories: the safeguards and the criteria for medically
As I understand, your viewpoint is such that it is likely that if
we're going to have a constitutional challenge, that challenge to the new regime
would focus not on the criteria but on the safeguards. Could you elaborate on
Mr. Stewart: Yes. I should say first that my track record
of predicting when the Supreme Court will and will not uphold legislation is
very poor. People often ask me, when big decisions are coming, what I think, and
I say that it's going to be this for sure, and I'm wrong. As a prediction
exercise, it's not very good.
Although they don't perfectly track the language in Carter,
my sense is that the criteria basically comply with it. That's my view. I know
others have a different view. But Carter doesn't tell us anything about
what safeguards should be in place because there weren't any under the former
regime. They were not subject to constitutional challenge. The decision is not
about which safeguards would be appropriate for determining whether particular
individuals do or do not meet the safeguards.
I anticipate that the challenge may be to say, okay, even if the
criteria are acceptable, these safeguards are so stringent that some people who
are constitutionally entitled to access medically assisted dying will not be
able to because the safeguards are too stringent. That's the kind of attack that
I would anticipate on this legislation.
The question is going to be: Can the government satisfy the court
that this is the best it can do in terms of, on the one hand, protecting people
who might be tempted, in a moment of weakness, to access this regime, which is a
legitimate policy objective — and there's nothing in Carter
that casts any doubt on the legitimacy of that objective — and on the other hand
enabling people who are constitutionally entitled to this procedure to access
it. That's how I see the issue playing out.
My sense is that, yes, you could loosen the safeguards somewhat.
That would compromise Parliament's objective of protecting those who are
potentially vulnerable, and so it might be possible for the government to say
that these safeguards are constitutionally adequate.
Both the trial judge and the Supreme Court of Canada commented a
number of times that a medically assisted death regime with a stringent set of
protections would be constitutionally sufficient. They didn't say what those
protections would be.
I'm not sure if this is helping, but that's how I see the issue
Senator McIntyre: Professor Newman, you raise four
interesting points. You raised the June deadline and the constitutional
authority of Parliament. If you were Minister of Justice, would you invoke the
Mr. Newman: That might be above my pay grade, but I think
that it is something to consider.
This is literally life-and-death legislation. We've heard from
many parliamentarians in media comments that they feel there's not been adequate
time to discuss the issue. It would be a limited procedural use of section 33 to
better protect the rights of all Canadians and to find a balance that works.
Because when we talk about issues like safeguards, we need to remember it's not
just those seeking assisted suicide procedures, but also the vulnerable whose
equality rights and section 7 rights themselves are at stake. For Parliament to
craft the ideal piece of legislation, if there's a feeling that there's not been
enough time, I think section 33 ought to be a live possibility.
Senator Jaffer: Thank you very much for your
Professor Graham, as an expert on statutory interpretation, there
are some terms in the bill that do not have definitions, but the Department of
Justice has published an online glossary of terms used in Bill C-14. These
include the “advanced state of irreversible decline in capability” and
“reasonably foreseeable” death, two of the most contentious aspects of last
week's hearing and from feedback that we have received from citizens.
Can you please tell us what force of law, if any, does an online
glossary have? Would it be preferable that the content of the online glossary be
included in Bill C-14?
Mr. Graham: The online glossary would have no force of law
unless somehow it was incorporated by reference explicitly into legislation that
was considered, voted on and passed by Parliament. To the extent that it would
be useful, then, in the interpretation of something that has actually passed,
we're getting into the realm of extrinsic aids.
Prior to 1998, the answer to that question would have been it
wouldn't be considered very valuable at all. But in 1998 we had the Rizzo
& Rizzo Shoes Ltd. decision in the Supreme Court of Canada, which really
blew the doors off questions about what sort of evidence might be admissible for
the purposes of determining the specific meaning of words or phrases found in
legislation. That case focused on Hansard, the transcript of debates, which are
actually infected by a lot of the same sort of weaknesses that one could
perceive in an online glossary. Someone who has the power to make a statement in
Parliament, like someone who has the power to make entries into an online
glossary, might have a particular political motivation for incorporating a
particular definition into that glossary.
What I've observed, having read a number of decisions in which
extrinsic aids are used — they are generally considered admissible — is that the
fight comes down to weight: How much weight will we attach to that particular
extrinsic aid? Looking at the cases, that tends to vary directly with the amount
of usefulness that aid has in generating a particular outcome.
If it's an outcome that corresponds to other matters that the
court has taken into account and is about to generate a decision pointing in a
particular direction, they might give considerable weight to something of that
We see the same thing with international treaties that haven't
been adopted, and white papers and position statements. All sorts of extrinsic
aids are now routinely considered by the courts in their interpretation of law.
They don't have the force of law, but they can play quite a significant role.
Senator Jaffer: There are three ways in which this bill is
set out. First, of course, is in the bill itself, then the preamble and then the
glossary. The best place would have been in the bill itself, the definitions, to
give it more weight. Would you agree with that?
Mr. Graham: It's the clearest way, yes, even though, as I
said in my opening statement, we do have lots of cases where the preamble from
spent legislation continues to be used as an interpretative aid. At that point
it's being used as an interpretative aid; it is no longer the text itself to be
interpreted. It's something to cast light on the text rather than being part of
the text itself.
That being said, we do have the 1993 decision of the Supreme
Court of Canada, R. v. Egger where the court referred back
to the amending act and actually used the language of the spent amending act to
override the literal language of the extant provisions of the Criminal Code. It
was also a Criminal Code case.
I don't want to underestimate the power of these aids to
interpretation, but the clearest way to impress legislative intent upon these
things is to have them be part of an operative section of the legislation.
Senator Boisvenu: Thank you very much for your very
informative testimonies. I have the impression that the true consensus that is
developing around this bill is that half the people think it is too restrictive
and the other half do not think it is restrictive enough. In Quebec, when the
legislation that was adopted was being drafted, we spent almost a year on public
consultation to obtain a consensus. We know that with legislation like this,
which appeals to moral, social and even religious values, if we do not get a
consensus, we may be before the courts for years because one group or another
will challenge it.
The question, which may be banal, is should we reject this bill
and continue our consideration to come to a majority consensus, so that Canada
can pass a bill that will also address people who are dying? Everyone agrees
with legislation that deals with the dying. However, we also need legislation
that takes into account people who are suffering but who are not necessarily
dying, and who are leading lives that are unacceptable on a human level.
In this sense, should we not delay passing the bill, if not
reject it, and continue this Canadian reflection? Rejecting the bill will have a
relatively banal impact on the Quebec legislation and will give the provinces
the opportunity to pass legislation that will make this medical act possible. So
should we not simply reject the bill instead?
Ms. Jakeman: Through its governing council, the Canadian
Bar Association made some resolutions last year. One of them was that there be
in place an amendment to the Criminal Code that aligns with Carter. So
the CBA's position is that we should reject this legislation until a time that
proper reflection can be made.
There is case law in place. The Supreme Court of Canada has
spoken in Carter, and we know across the jurisdictions that there are
probably eight cases now across the country that have dealt withand
interpreted Carter, and they've dealt with safeguards.
We know that what is in place now is working. So from the CBA's
perspective, that is a very reasonable idea.
Mr. Newman: There are reasons to think further about the
bill. If the motive in taking more time were to allow for further thought, that
has good reasons behind it.
The question is what happens in the interim? In the absence of
Parliament choosing to extend the deadline, which I've mentioned is a
legislative possibility, the Carter decision simply comes into effect,
and the consequences of that may be all that much more unpredictable compared
with passing a bill.
I'm not sure if it weighs in favour of simply rejecting the bill
if the aim is to have more time to think. It may weigh in favour of using
section 33 to prolong the time to think and then to develop some type of
response to the Carter decision.
The Chair: Mr. Stewart and Mr. Graham, if you'd like to
respond, you've got about a minute to do so.
Mr. Stewart: Very briefly, in the four-month period since
the Carter decision, people can apply for constitutional exemptions
according to the decision. If Carter simply comes into force, it will not
be necessary to apply for a constitutional exemption; people will be able to
access physician-assisted death in accordance with the declarations set out in
paragraph 127 of Carter. That will be a not-very-well-regulated process,
I would say. I would not be enthusiastic about delaying implementation of the
bill, even if it's not a perfect bill.
Mr. Graham: There are two separate questions here. One is:
Will this survive constitutional challenge? I happen to share Professor
Stewart's view that it would, notwithstanding his prior track record. The second
question is: Would it be wise to pass this bill? That's not land on which I care
to tread at this point.
Senator Dagenais: My question is for Professor Newman. I
have the impression that we are being made to study this bill in “marathon” mode
to prevent us from fully understanding its scope, which is significant. If we
have to proceed quickly, we will probably need to make amendments. What do you
think should be removed from the bill so that it better respects the decision in
Mr. Newman: I'll first challenge the premise that the aim
needs to be to better respect the Carter judgment. The aim needs to be to
offer a parliamentary response to the Carter judgment, which might
diverge from elements of the Carter judgment. As I mentioned in my first
point, the Carter judgment is not legislative in character. It's
ultimately the responsibility of Parliament regarding how it wishes to engage.
In terms of what might be worth amending, I've mentioned examples
in terms of some of the safeguards that pose issues, and I discuss that more in
the written brief.
I'm also not sure if all of the amendments that might be
appropriate can easily be made in a Senate chamber under marathon conditions.
One of the points that I mentioned was the fact that the external panel
identifies specific impacts on indigenous communities that are different than
those on Canadians generally. In some circumstances, some would think that gives
rise to reasons to consult more extensively with indigenous communities, and
unless that's something that's happening under the marathon conditions, it may
actually be that it's not a simple matter to strike the appropriate amendments
in the short time period under consideration.
Senator Plett: My question is for Ms. Jakeman. In your
presentation, you talk about the preamble. Part of the preamble is what I find
most concerning about the bill; namely, when we speak about mature minors. I
have a very clear opinion on where I stand on mature minors — actually, I would
like to hear them simply called “children.”
You suggested that you felt the government should possibly speed
up the process in studying this. Since we're talking about people's rights and
Charter rights, do you believe that a child's rights are impinged upon by not
allowing a child to seek suicide, and at what age would you draw that
Ms. Jakeman: The Canadian Bar Association is actually in
the process of studying mature minors, persons with mental illness and advance
directives. We don't have a clear line on any of those. Our position is that
whatever happens in the next — there's no particular provision or timeline in
the legislation as to when that should occur. All we're saying is that we'd like
to see it happen quickly so that if it's concluded that these are vulnerable
people — and I can tell you that some members of the working group feel that
they are — then their constitutional rights are dealt with sooner rather than
Senator Plett: To deal with something that your
association isn't clear about at all — and I would suspect that the majority of
Canadians aren't clear about it — would it not be wiser to move a little more
slowly and tread carefully rather than move quickly on something we aren't sure
Ms. Jakeman: I take your point. Our point was only that
this group of people is vulnerable as well, and they need to understand their
rights under the Carter decision. Obviously, Carter doesn't deal
with any of those.
Senator Batters: To quickly deal with mature minors, Ms.
Jakeman, would you acknowledge that Carter specifically requires a
competent adult, correct?
Ms. Jakeman: That’s correct.
The Chair: Thank you, witnesses. We very much appreciate
your appearance. I think you understand the time pressures. We could have had
you here for another hour easily, but that's what we're operating under. Thank
you for your contributions to our deliberations.
For our second panel today, we will be hearing from the
regulatory perspective. If I mispronounce any names, you can correct them when
you have the opportunity.
Joining us at the table are, from the Federation of Medical
Regulatory Authorities of Canada, Dr. Douglas Grant, President, and Dr. Trevor
Theman, who is a past president. From the College of Physicians and Surgeons of
Ontario, Dr. Joel Kirsh, President, and Dr. Rocco Gerace, Registrar. From the
College of Registered Nurses of British Columbia, Christine Penney, Deputy
Registrar, Chief Officer, Policy and Practice.
Thank you all for being here today. The federation is going to
lead off with opening statements. The floor is yours.
Dr. Douglas Grant, President, Federation of Medical Regulatory
Authorities of Canada: Thank you. On behalf of the Federation of Medical
Regulatory Authorities of Canada, I appreciate the opportunity to make these
Each of FMRAC's 13 provincial and territorial members is
legislated provincially to regulate the medical profession in the interest of
public safety. As regulators, we protect patients, and these submissions are
made on behalf of the patients served by the regulators and in the interests of
establishing effective regulation of medical aid in dying.
It will be the regulators' responsibility to communicate to the
public and to the medical profession how medical aid in dying will be provided,
and it will be the regulators’ responsibility to oversee its actual delivery. In
essence, as regulators, we foresee playing a central role in Canada's approach
to medical aid in dying.
The need for brevity has been underscored. FMRAC supports many of
the fundamental aspects of Bill C-14 and supports the provisions that extend
exemptions from criminal liability to the ancillary health care workers. We
particularly support the notion that two physicians be involved in the
assessment of eligibility.
In large measure, FMRAC views Bill C-14 as being aligned with the
same principles we outlined in a guidance document we generated in the immediate
aftermath of the Carter decision. We particularly appreciate that
Bill C-14 leaves room for the regulators to regulate the medicine that will be
But FMRAC has a number of concerns particularly with Bill C-14.
The first has to do with clarity. It's self-evident that clarity in this
legislation is necessary for there to be a harmonized and effective approach to
medical aid in dying, and I'd like to focus the submission on the language that
“natural death has become reasonably foreseeable.”
This provision that was just addressed with your legal panel
appears to address proximity to death as a criterion for eligibility. It's not
for the regulators to make submission as to whether eligibility be limited to
those near or somewhat near death, but, in the submission of FMRAC, this
language, this criterion for eligibility, needs to be made clearer.
This is legal, not medical, language, and I think we just heard
that the lawyers don't even like it. The language is too vague to be understood
or applied by the medical provision and too ambiguous to be regulated
effectively. Moreover — and I draw on the point made by the question of
Senator Joyal — with multiple interpretations available, FMRAC may be faced with
the challenge of harmonizing various provincial approaches, as each province
seeks to interpret what “reasonably foreseeable” means.
I think we have to recognize the danger that goes with an absence
of clarity in that, in the absence of a clear language, physicians will be
reluctant to act. If this language remains as it is, our submission is that a
barrier to access may develop because physicians, unable to confidently assess
eligibility, will be reluctant to act.
The second broad heading of our submission has to do with access
issues, and many of these were touched on previously. I would particularly draw
attention to the fact that Bill C-14 provides no contemplation for the arc of
the competence-declining patient. Faced with the spectre of being denied medical
aid in dying once found to be incompetent, patients may determine that they have
no option except to seek medical aid in dying precipitously, while still
competent yet before they would otherwise choose to die. This mirrors the
situation that brought Ms. Carter to the courts initially - the need to seek
Physicians of such declining patients will be faced with the
precarious task of making death-bed determinations of competence and feeling an
urgency, perhaps, to provide the service their patients want before it becomes
too late, before the patient slips into incompetence. Moreover, regulators will
be faced with the impossible challenge of providing clear guidance to physicians
attempting to navigate these waters on behalf of their suffering patients. Our
submission is that this language needs to be made more specific with respect to
eligibility of the patient whose competence is declining.
With respect to conscience, we have an uncomfortable history, as
a profession, that the exercise of physician conscience has often come at the
expense of patients' rights. We saw this dilemma with respect to contraception,
with respect to abortion, with respect to access to blood products and with
respect to access to traditional healing.
I recognize that my time is short. I apologize. Thank you.
The Chair: I apologize for that, but that's what we have
to operate under.
Dr. Joel Kirsh, President, College of Physicians and Surgeons
of Ontario: Thank you, Mr. Chair and senators, for this opportunity to
appear before this committee in relation to Bill C-14. My name is Joel Kirsh and
I'm President of the College of Physicians and Surgeons of Ontario. I've trained
in and practised pediatrics, pediatric intensive care, and pediatric cardiology
for the last 24 years at the Hospital for Sick Children in Toronto. Joining me
to my left is Dr. Rocco Gerace, who has 29 years of experience in emergency
medicine and has been registrar of our college for the past 14 years.
The college has a legal mandate to serve and protect the public
interest, a role that we take very seriously. All our work as Ontario's medical
regulator, including our response to medical aid in dying, is undertaken with a
view towards fulfilling that mandate.
In 2015, the college drafted its expectations for physicians in
relation to medical aid in dying. Our interim guidance document was approved by
our council in early 2016 and has since provided guidance to physicians and
support to patients in the absence of a legislative framework.
The college supports many aspects of the bill, but we will focus
our short time on remarks related to our primary areas of concern — areas that
we feel will impede patient autonomy and patient access to care. These areas
include the eligibility criteria, safeguards and conscientious objection.
In relation to the eligibility criteria, the college has concerns
with two elements in this section. The bill requires that patients must be 18
years of age and capable in order to access medical aid in dying. Connecting
capacity to a specific age is at odds with the approach that underpins relevant
legislation regarding capacity and consent. For example, in Ontario, there is no
age of consent for medical care. Individuals are considered to be capable if
they are able to understand relevant health information and the consequences of
making a treatment decision.
The approach taken in the bill may lead to confusion in Ontario
and other jurisdictions. It may also result in an uncomfortable inconsistency
that is hard to reconcile. An Ontario patient under the age of 18 may be
considered capable to refuse potentially life-saving treatment or request
withdrawal of life support but would not be eligible to access medical aid in
The definition of “grievous and irremediable medical condition”
contained in the bill appears to be inconsistent with the Carter
decision, and as a result will cause confusion amongst physicians and the
public. The requirement that conditions be incurable suggests that patients must
explore and undertake all treatment options or cures before they can request
medical aid in dying. This would force patients to pursue treatments that they
do not find acceptable.
The requirement that patients must be in an “advanced state of
irreversible decline in capability” implies that patients must have a condition
that progressively worsens over time. This will exclude conditions that may
otherwise be serious and incurable and cause enduring and intolerable suffering;
but these conditions are not progressive. The requirement that death be
“reasonably foreseeable” appears to require that patients be close to death
before they can request aid in dying. This would exclude a patient who may have
non-terminal conditions that are otherwise serious and incurable and cause
enduring and intolerable suffering.
The second of the college's concerns relates to safeguards,
specifically the definition of “independence” and the provision regarding the
reflection period. The definition of “independence” as it applies to witnesses
and practitioners will propose significant barriers to patient access. The
requirements for independence of witnesses would prevent the patients' family,
caregivers or health care providers from acting as witnesses. Some patients who
would otherwise be eligible for medical aid in dying may not be able to find two
such individuals to act as witnesses and might be force to call upon virtual
strangers to act as witnesses to a request that is intensely personal and
private or otherwise they would be denied access to medical aid in dying.
The requirements that practitioners not be in a business
relationship with each other or be connected to each other would prevent
physicians working in the same practice group or health care facility from
providing medical aid in dying. In some communities, a single practice group or
health care facility includes all physicians who serve that community. Patients
in that community would have to leave their community to receive medical aid in
The college supports the requirement for a period of reflection
but believes the language in the provision should be broadened to enable
practitioners to shorten from 15 days for reasons related to patient suffering.
Our third area of concern relates to conscientious objections,
which Dr. Gerace will address.
Dr. Rocco Gerace, Registrar, College of Physicians and
Surgeons of Ontario: In respect of conscientious objection, we feel this is
as important to patient access as the other issues. While the joint committee
and the college have both said that at a minimum objecting practitioners must
provide an effective referral, this has come under some criticism. We're of the
view that this direction is consistent with the Supreme Court's dictum that
practitioner and patient rights be reconciled. The fact that some physician
groups are advocating for self-referral we feel abdicates our professional and
ethical responsibility to put patients' needs before the needs of the
We would urge the federal government to work with the provinces,
territories and medical regulators to articulate clear expectations for
practitioners that won't impede access to care.
Christine Penney, Deputy Registrar, Chief Officer Policy and
Practice, College of Registered Nurses of British Columbia: Honourable chair
and members of the committee, thank you for the opportunity for CRNBC to address
you on this important social matter.
The College of Registered Nurses in British Columbia regulates
40,000 registered nurses and nurse practitioners in the public interest. Under
legislative authority of the Health Professions Act, CRNBC sets and enforces
standards to ensure that nurses deliver safe, competent and ethical care to
patients and their families.
In response to the Supreme Court Carter decision and the
special joint committee report, CRNBC has been working closely with our
provincial counterparts and stakeholders, including the B.C. Ministry of Health,
the health authorities, the College of Physicians and Surgeons and the College
of Pharmacists in B.C., as we all carry out our respective roles related to
establishing standards, protocols and safe approaches for providing and aiding
medical assistance in dying.
In addition to considering and developing standards, limits and
conditions for nurses and nurse practitioners in B.C., CRNBC has also been
considering what quality assurance methods will be required to support nurses'
Our recommendations focus on two key areas: first, regulatory
supports for inter-professional collaboration; and, second, quality assurance
Under regulatory support for inter-professional collaboration, we
have five recommendations, which I'll get to in a moment. We've made a reference
to the Canadian Nurses Protective Society. They have submitted a brief, and we
have attached a letter supporting a couple of elements in that brief.
The first recommendation is that legislation addresses
collaboration and shared decision making for patients, health practitioners and
family members. Research from the Benelux countries demonstrates better outcomes
for the person, their family and health care providers when there is legislative
emphasis on the inter-professional nature of the work and the importance of
collaboration throughout the process, for example, discussions of eligibility,
multiple discussions to ensure comprehension by the person requesting
assistance, and formal debriefing after the event.
The second recommendation is that legislation clarify the role of
nurse practitioners related to determining a patient's eligibility requirements.
If the diagnosis of a grievous and irremediable condition and the prognosis of
foreseeable death are confirmed by medical consultation and diagnostic reports,
then it is appropriate that a nurse practitioner could synthesize the
information — the evidence — for the purpose of completing eligibility
assessment either with another nurse practitioner or a physician. However, it is
outside the scope of a nurse practitioner in British Columbia to independently
determine the grievous and irremediable nature of a disease or a condition and
also the prognosis.
The third recommendation is that the legislation clarify that
only a physician or nurse practitioner may personally administer the substances.
CRNBC sees the role of a registered nurse limited to aiding in medical assisted
dying and excludes the administration of the substances.
Fourth, it is recommended that the preamble of Bill C-14
emphasizes the notable distinction between medical assistance in dying and
palliative care. The intended outcome of palliative care is to improve the
quality of life for those with serious illnesses. When receiving a request for
assistance with dying, it is important to determine whether the request is being
made as a result of unmet needs like physical, emotional or spiritual that
additional palliative care activities may address, such as pain or symptom
management, anxiety, loss of ability to carry out activities of daily living,
et cetera. Medical assistance in dying is not an appropriate alternative for a
person who is seeking palliative care.
The final recommendation in this area is that government not
address language related to conscientious objection in the legislation because
we see that it squarely falls within the jurisdiction of professional colleges.
The Chair: Thank you.
We will move to questions, beginning with the deputy chair,
Senator Jaffer: Thank you all for your presentations,
which will be useful in our work.
Dr. Kirsh, for me today you set out the challenge with mature
minors where you, if I understood you correctly, already deal with mature minors
as adults in the sense that they decide on what treatment they get and how they
want to deal with the treatment. Now you're saying that we will be dealing with
mature minors differently than adults. Did I understand you correctly?
Dr. Kirsh: Well, I'm here on behalf of the college of
physicians of Ontario, but I will bring my pediatric experience to the table,
I've also had extensive conversations with my colleagues in
palliative care and pediatrics. You're going to be hearing from the Canadian
Paediatric Society, I believe, on Thursday, so I can't speak for them. As it
stands now, when we consider consent for medical procedures or medical care in a
younger person — “younger person” meaning someone who isn't 18 — we consider it
in the context of the capacity they have for the medical procedure being
proposed. Giving a young child stitches for a laceration is very different than
taking them to the operating room for open heart surgery, for example, and
that's going to be different according to the age. So there is a continuum of
capacity according to the acuteness, the complexity of the medical procedure and
the age of the patient. But there are also other issues for capacity for
patients in terms of developmental status, which can be different in children
even though they have the same age.
I work in an acute care hospital with complex patients and needs.
I think to best answer your question, we recognize as a college the challenges
that the current bill in its wording is going to present when we do have
patients who are 13, 14 or 15 years old but their souls are older. They have had
medical experiences that transcend medical experiences that most of us adults
have had, which lends them the ability to consider some of the challenging
decisions that are made in the context of Bill C-14.
Senator Jaffer: I have a question for the regulators,
Ms. Penney and Dr. Grant. The question is about “reasonably foreseeable.” When
the minister was here, she said that she was purposely keeping it flexible so
that it could be interpreted by the practitioners.
I have challenges with that. How do you regulate that, and how
are you going to be able to advise the people you work with on what is
Dr. Grant: I don't know, which was the essence and one of
the essential points of my submission.
Senator Jaffer: Yes.
Dr. Grant: I worry that if the language remains unchanged,
there will be a variety of interpretations of “reasonably foreseeable,” both
province to province — although FMRAC will hopefully work towards consensus, and
I'm confident it can — and in a range of interpretations from health authority
to health authority, from physician to physician. It's simply not language that
appears in the medical lexicon.
Ms. Penney: I think, similarly, nurse practitioners would
be relying on the specialty evidence available and as the patient presents to
them. Again, I think in our quality assurance recommendations, we really hope
that there is standardization at a provincial level and that that's required
within the legislation. It would not be very helpful if each of the health
authorities had a different interpretation, and that's what will happen if there
isn't a standardized care pathway.
Senator White: Thanks to all of you for being here.
Dr. Kirsh, just so we're clear, the suggestion you would make on
the age is that it would be up to the medical practitioner to determine whether
or not the individual was of a proper age to understand what they're asking for.
I used to be a police officer. I couldn't interview someone under the age of 18
without a parent present. I'm trying to figure out how this would work.
Dr. Kirsh: I will come back to my original comments as
president of the college of physicians. We're identifying this as an area of
concern that we think will present a challenge. I don't think it's within my
purview to suggest language or modifications to legislation. That's not my skill
set at all.
The analogies I drew were meant to guide you towards the thinking
that has led us to identify this as an area of concern where there is going to
be a mismatch between life and death decision making in minors that will be set
up by the current language of the bill.
Senator White: So your suggestion wasn't that it should
include people under 18 to suggesting it could be a concern.
Dr. Kirsh: I think it's a concern as it currently reads.
There has been some discussion about study and approaches, including other areas
that aren't really defined in the bill, whether it's substitute decision making
or advance directives. Those are all issues of potential concern that will merit
Senator White: And you realize that we're doing this today
because of the Supreme Court decision, which did not talk about minors at all.
It didn't talk about under 18 at all. So it wasn't something that the Supreme
Court of Canada directed to us in their decision, either, to consider the age of
Does the college also suggest that medical practitioners as well
as nurse practitioners would not have the right to not refer? Is it correct that
they must refer?
Dr. Kirsh: I'll leave that to Dr. Gerace.
Dr. Gerace: What our college has said, consistent with the
report of the special joint committee, is that physicians have an obligation to
make an effective referral either to another practitioner agency or health
practitioner. It's not optional. We feel the failure to do so would create
barriers for patients to access legally sanctioned treatment.
Senator White: So both medical practitioners and nurse
practitioners will have an obligation to refer.
Dr. Gerace: I can only speak to medical practitioners in
Senator White: So we would treat them differently. Do you
believe your membership would support that?
Dr. Gerace: Certainly it's reflected by our board, who
voted unanimously, with one abstention, to support that in the case of assisted
death. I would suggest that the vast majority of the profession would support
that, but there are a number who do not support it.
Senator White: Ms. Penney, your opinion on the requirement
to refer on the part of nurse practitioners?
Ms. Penney: For British Columbia, the language around
“refer” is problematic because it takes on a bit of a different meaning, so the
language we've been using is that they must transfer the care and ensure that
the transfer of care is complete.
Senator Baker: Thank you to the witnesses for their
Dr. Kirsh, perhaps you can answer this question that's on the
minds of everybody who looks at this bill. What did the Supreme Court of Canada
intend as far as the application of the law is concerned with regard to
terminally ill versus not terminally ill patients?
The Supreme Court of Canada brought down their judgment. Then it
was extended for the four-month period. It gave patients the permission to go to
a superior court judge to determine whether or not they qualified for
During that four-month period, the law was as contained in
paragraph 127 of the Carter decision. However, according to the
guidelines which your college wrote and that physicians were to follow — it
operated as a guide to the Supreme Court cases in Canada. There were eight
across Canada, and four of them mentioned your interim guidelines. I'm trying to
get a copy of it. All the cases have involved terminally ill patients. They
quote your guidelines in three of them. Did your guidelines allow for
physician-assisted death in the case of someone who was not terminally ill?
Dr. Kirsh: Thank you for the question, senator. I'll
express some relief. I thought originally as you opened your comments that the
question was whether I could tell you what the intent of the Supreme Court was.
I'm relieved by the second part of your question.
Our guidelines do allow for that because we follow very closely
the Supreme Court's decision, and our interpretation of that decision —
Senator Baker: Just paragraph 127?
Dr. Kirsh: I can't speak to the specific line number,
senator. I apologize. Our intention in drafting our interim guidelines for the
profession in Ontario was to stay close to the Supreme Court's decision
regarding “grievous and irremediable condition,” and to revise the guideline as
legislation or other case law became available to us. We've got staff pouring
over all decisions and being involved in following the issue as things go along.
In fact on Friday morning I'll be meeting with our working group again to
further revise our guidelines as things become clearer.
Senator Baker: So it did allow for physician-assisted
death to persons even though they were not terminally ill?
Dr. Kirsh: We stuck to the Supreme Court language,
senator, which was “grievous and irremediable condition.”
Senator Baker: And “intolerable” pain. There were three
conditions: that there be conscious consent, grievous and irremediable
condition, but also there would be intolerable pain.
Dr. Kirsh: “Intolerable suffering” I believe was the
Senator Baker: Yes, those three.
Dr. Kirsh: We have stuck to the same requirements as set
out in the decision on Carter, in our interim guidelines.
Senator Baker: Interesting.
Senator McIntyre: Thank you all for your presentations.
Dr. Kirsh, in reviewing the brief presented to us by your college,
my attention was drawn to a document entitled “Interim Guidance on
Physician-Assisted Death.” I thought that was a very interesting document and
I'll tell you why. This document has been used by physicians and judges of the
Superior Court of Ontario and other provinces in managing requests for judicial
authorization of medical aid in dying during the interim period from February to
June of this year.
In order to avoid the potential for abuse of power to inflict
death, especially on vulnerable people and for practical reasons, do you think a
Superior Court judge should be required to review and approve each request for
physician aid in dying prior to it being implemented? In other words, it would
continue with this document that has been in force.
Dr. Kirsh: Thank you senator. I think you're asking me to
have an opinion on what the legislation or the Criminal Code would say about
that issue after June 6, and I think that's outside my area of expertise.
We haven't taken a position on judicial review or a requirement
for judicial review. That could be perceived by some in areas of our province or
areas of Canada to represent a barrier to access. As I think I've tried to focus
my comments today, access for patients and autonomy for patients are foremost in
Senator McIntyre: Would others care to comment?
Dr. Trevor Theman, Past President, Federation of Medical
Regulatory Authorities of Canada: I'm the Registrar of the College of
Physicians and Surgeons of Alberta. Dr. Grant is the registrar in Nova Scotia. I
also had the opportunity to participate as Alberta's representative to the
Provincial Territorial Expert Advisory Group that looked at what was then
called physician-assisted dying and providing advice to the Minister of Health
and Long Term Care in Ontario and the Attorney General, and by them across the
I think the answer from my perspective and our college's
perspective is that that would be an extra barrier. This is the intersection of
the law and medicine, and the Supreme Court in effect, in my interpretation,
said that this is now a medical act. This will be a legal act, just like 30
years ago termination of pregnancy became a medical act, and so we're
medicalizing this. To have to take a medical decision to a Superior Court would
be, I believe, obstructive to access in this country.
Dr. Gerace: I would agree with Dr. Theman. I think it's
inappropriate to have the courts involved in medical care. This is between
patients and their caregivers.
Senator McIntyre: With all due respect, I have to differ.
Senator Joyal: Dr. Grant, was your association consulted
by the department when drafting that bill, when they were wrestling with the
various medical conditions that they were evaluating and their impact to be
included in the bill to be sure that what they would be proposing would be
workable by the profession?
Dr. Grant: FMRAC was not, to my knowledge, and I can say
that the College of Physicians and Surgeons of Nova Scotia was not consulted.
Senator Joyal: Can I ask the same question to Dr. Kirsh?
Dr. Gerace: We were not consulted.
Senator Joyal: I will try to put it in the most neutral
term. The government wrestled with concepts that are in fact medically loaded or
have medical impact and are interpreted in the various provinces and 10 colleges
of doctors that exist in Canada, but you were not consulted on the scope of a
definition that at first sight raised problems. Are you aware of other members
of the profession that would have been consulted?
Dr. Grant: When you say the profession, are you referring
Senator Joyal: Yes, the regulators.
Dr. Grant: I'm reasonably confident saying that none of
the provincial or territorial colleges were consulted, senator.
Senator Joyal: I would like to come back to your comment
about how to define natural death that becomes reasonably foreseeable. Paragraph
(d) of the bill, if you have it in front of you, states the following:
(d) their natural death has become reasonably foreseeable,
taking into account all of their natural circumstances, without a prognosis
necessarily having been made as to the specific length of time that they have
How do you interpret the second part of the phrase? Does it model
the first one or does it in fact make it clearer in terms of a doctor who would
be faced with a situation to re-evaluate it?
Dr. Grant: I think you can probably anticipate my answer.
Senator Joyal: I'm not a doctor.
Dr. Grant: It's interesting that when the Carter
decision came out, our sense was that that there was no proximity to death
contemplated by Carter. The Quebec legislation, as you know, contemplates
the condition as fin de vie. My attempt to interpret “reasonably
foreseeable” means with that modifier that death is not necessarily imminent but
somewhat near and to be contemplated.
I think that's so difficult for the doctor. As we look at this
through the lens of the suffering patient and the lens of the family, it's so
difficult to interpret. I think every physician's horizon would be different.
All physicians are encouraged to talk about end-of-life issues early with
patients — that is, early in a process — so you can get a good sense of that.
Physicians initiate that conversation at different points along the continuum.
Senator, our concern is that this is language that doctors will
not be comfortable with, language that neither patients nor doctors nor lawyers
really understand, and I don't really quite know how to regulate or implement
Senator Joyal: Dr. Kirsh, in your practice with minors,
how would you implement those criteria if you would have to face such a
Dr. Kirsh: I'm sorry, senator. Do you mean with regard to
the “reasonably foreseeable” language?
Senator Joyal: Yes, and without a prognosis necessarily
having been made as to the specific length of time that they have remaining.
Dr. Kirsh: If you're asking specifically to my practice as
a pediatric cardiologist, I deal with conditions that have potentially fatal
outcomes all the time. It's impossible to predict for an individual patient a
time that could be measured or the time between the moment you consult with them
to when they could die, if they have a potentially fatal condition. In fact,
we're guided against that because any prediction I might make in that
circumstance is wrong in either one direction or the other.
This is not language that would help me as a practitioner in the
Senator Plett: My questions are to the two witnesses from
the college of physicians. I'll ask the questions to both of you right away and
then you can answer.
You take exception — and I find it alarming — that the bill
suggests dying should be an option of last resort, as you state in some of your
I would hope that it is an option of last resort. This is quite
literally life and death. You have essentially objected to every safeguard the
government has put in place. From a medical perspective, how do you explain your
objection to assisted dying being an option of last resort, and what kind of a
physician would not explore and encourage their patient to explore every
alternative and possible care before agreeing to the end of life of a patient?
My question on the conscientious objection is this: In what way
is declining any sort of participation in this process or not referring the
patient unethical? Whose ethics does the goal of preservation of life violate,
and how can you suggest that the ethics of those who support euthanasia are more
valid than those that do not?
Dr. Gerace: Firstly, in respect to conscientious
objection, the focus of physicians has to be their patients, not their own view
of the world. So a patient who requests information about a legal procedure is
entitled to get that information. It's my view, and the view of the college,
that a doctor who refuses to provide that information or arrange for that
patient to get that information is behaving in a manner that's unprofessional.
I simply think that it is unconscionable not to put patients
first. We dealt with this. Some of us are old enough to have been around when
termination of pregnancy became legal, and that was the guide. If you didn't
believe in doing an abortion, you arranged for your patient to see someone who
could talk to them about it. It's all about the patients and not the
Senator Plett: The Supreme Court, in Carter,
expressly recognizes, in paragraph 132, the need to balance the charter of
rights of patients and the charter of rights of physicians.
Dr. Gerace: Correct. We believe that demanding an
effective referral effectively reconciled those rights. The doctor who makes the
referral is not engaged in the act of terminating the patient's life.
It's like me as an emergency physician. If I have a patient who I
think wants or needs surgery, I refer them to a surgeon. I don't decide whether
they're going to get surgery. It's the surgeon that makes that decision.
Senator Plett: This is about somebody's life. I don't
think it's the same.
Dr. Kirsh, could you answer my other question, please?
Dr. Kirsh: I'm going to defer to Dr. Gerace's response
regarding conscientious objection.
Your other question, senator, related to what?
Senator Plett: It related to the last resort. At what
point in the process should this be the first resort? What resort should it be
for somebody to ask for the termination of his or her life?
Dr. Kirsh: I'd like to apologize if my remarks or if our
submissions suggested to you that we were against the language, specifically
“last resort.” I think we stayed away from that.
Senator Plett: No, your submission states it very clearly:
“It suggests MAID must be an option of last resort.” It's one of the
concerns you raised.
Dr. Kirsh: The other aspect I did touch upon relates to
the language of “incurable” in the legislation. We don't feel, as a regulator,
in our guidance that a patient has to seek every possible remedy if some of
those remedies or if some of those treatments are not acceptable to that
patient. I think that is language that the Supreme Court used.
In terms of “last resort,” sometimes not everything you do for
patients to prolong their life meets their needs in terms of suffering and
grievous and irremediable condition. My colleagues in palliative care,
unfortunately, meet with this on a regular basis. Sometimes they cannot control
a patient's pain. Sometimes they cannot control a family's anguish, and they are
often met with questions from families about medical aid in dying for their
child when it's clear that they have reached the limits of what palliative care
can do. If that's what you mean by “last resort,” then we are facing that as we
Senator Plett: I'm sorry. I didn't say that's what I meant
The Chair: Senator Cowan.
Senator Cowan: Welcome. Sorry I was not here for the
earlier part of your presentation.
I have a clarification and a question. My colleague Senator Baker
was talking about the cases that have been dealt with under the interim
guidelines and suggested, I think, that all of those cases involved patients who
were terminally ill. It's my understanding that a recent Manitoba case involved
a woman who had ALS and the attending physician said that that person had three
to five years to live. Is that your understanding as well?
Dr. Kirsh: I don't know.
Senator Cowan: There's been a lot of discussion about
June 6 being a deadline. Let's suppose the bill doesn't pass by June 6. We would
then be left with the decision of the Supreme Court of Canada in Carter
and the guidance that that provides, and then the work that your various
regulatory agencies would put in place for the guidance of physicians. Can you
give us some indication as to how that landscape would look to you?
Dr. Grant: There will not be a vacuum. This won't be the
Wild West. There is sufficient guidance in the Carter decision, and the
regulators who are legislated to have the responsibility of regulating the
delivery of the practice of medicine will regulate.
Nor is this uncharted territory. The reason this question came
before the Supreme Court of Canada — essentially the same question as the
Rodriguez question, 25 or 26 years its predecessor — is that the world has
changed. There is worldwide experience in the delivery of this. The essential
feature of the delivery of medical aid in dying is that it's a medical act.
The one glaring area of concern in the situation where there's no
legislation is medicine today is delivered in teams. The opening question of the
exemption or protection to be afforded those that help physicians in the
delivery of this care would worry me. I am confident in the absence of
legislation that if more thought and time is required the regulators can fill
Dr. Gerace: When the College of Physicians of Ontario
produced their guidance, it was produced with a view that there would not be a
law. We were butting up against the February 6 deadline. There was no indication
of whether there was going to be an extension, so we created guidance for that
It would be unfortunate if things like the team-based care that
Ms. Penney alluded to would not be possible. That would not be a good thing.
There would not be a national registry of deaths so we can monitor the
While life will or will not go on, on June 6, should there not be
a law, there will be deficiencies in the system.
Senator Cowan: I'm not arguing against legislation. I'm
just asking if the sky would fall if there was no legislation in place. You've
answered my question.
Dr. Theman: To me the critical piece, if you could, is to
create protections for other health care providers.
Senator Boisvenu: My question is for Ms. Penney. I would
like to thank all of you very much for being here. Your testimonies confirm that
this bill deserved broader public, professional and legal consultation than we
have given it. I am not blaming the committee chair, but I find it unfortunate
that our study is rushed. Ms. Penney, you stated earlier that the work of nurses
in this area should be limited to aiding the patient and should exclude
administration of the drug. Have I understood that correctly?
Ms. Penney: Yes.
We suggest registered nurses, so it's different than nurse practitioners.
Nurse practitioners have a scope of practice that would allow them to administer
the substance. Registered nurses, in our view, do not.
(French follows - Le sénateur Boisvenu: Dans les collectivités
éloignées . . .)
Senator Boisvenu: Medical care in remote northern
communities is often administered by nurses, with the help of the attending
physician who communicates by Internet or closed-circuit television because it
is rare for a doctor to be there permanently. So it is often the nurse who
administers medical services, with the exception of surgery. How can we make
your position compatible with the administration of the drug and aiding the
patient in communities like this?
Ms. Penney: I think we could, if physicians or nurse
practitioners were available through the procedure.
Senator Boisvenu: But most of the time, the professionals
or physicians are not available, and the nurses are the ones who provide all the
care and services over fairly long periods of time. Are we going to let the
patient suffer and wait for the doctor to come to administer the drugs? I am
trying to understand how these people in remote northern regions can receive
equal treatment to that given to people in the south. I am concerned about the
fate of these communities.
Ms. Penney: Yes, I understand the concern. I guess our
concern is that nurses may not have the capacity to deal with unintended
consequences — if someone is dying, they wake up, if they have seizures. A
nurse's scope of practice is limited if they don't have guidance from a
physician or a nurse practitioner.
People in the North should really have the same standard of care
that people otherwise have. Now, of course, geography sometimes limits that. But
nurse practitioners are becoming more and more prevalent in the communities as
Senator Dagenais: I have two quick questions for
Dr. Grant. First, how did you take the unnecessary broadening of certain powers
of nurses and pharmacists? Also, to what extent do these nurses and pharmacists
have the capacity to judge what we must call, under the bill, the irremediable
condition or reasonably foreseeable death of an individual?
Dr. Grant: Thanks for the question. It would not be for me
to speak to the scope of practice of nurses or pharmacists. In the Nova Scotia
experience, when working with nurse practitioners, they operate independently
but not autonomously, so always in a collaborative relationship with physicians.
Your question was more focused upon the language and the
determination of who is best trained and best positioned to make a determination
of whether a condition is grievous and irremediable. This comes back to the
patient. The challenge of practising medicine is to bring your knowledge to the
table but also to see the situation through the eyes of the patient. The
important modifiers in the language of Carter are that these things are
seen through the eyes of the patient. It's enduring suffering intolerable to the
patient, irremediable to treatments acceptable to the patient. That's the role
of the physician, to understand the view of the illness, meaning the disease
experienced, to understand the patient's illness.
You know my concerns about “reasonably foreseeable.” It's
language that doesn't compute for physicians. In terms of who best to make this
determination, I can say that that's something physicians can do.
Senator Lankin: Dr. Kirsh, you spoke about the mature
minor, and you made reference to the Health[IS25] Care Consent Act in Ontario and some of
the provisions of that. The flip side of that is capacity assessments and
advance directives and substitute decision making. It's a very complex regime
that works together, but it's working, I would argue.
This is to all the physician college representatives: When the
ministers were before us, a question about advance directives and why the
exclusion and other questions that were about mature minors, the response we got
was that the provinces, while they have different regimes, some of them find the
regimes are not working well on advance directives and on consent to treatment.
I hadn't been aware of that. I had not seen anything written about that or
anything discussed. In your experience across the country, do you affirm what
the minister said, or do you have a different view?
Dr. Gerace: I personally, senator, think it's working well
in Ontario, so I would defer to my colleagues from Nova Scotia and Alberta.
Dr. Theman: It's a question of what exactly might not be
In the sense of our providers always paying attention to what is
in a patient's personal directive and acting on those wishes, I hear anecdotally
that that does not always happen and is an issue. In other respects, I'm
uncertain what specifically the ministers were speaking to.
Dr. Grant: I, too, the same thing. I don't think we're
seeing failings of the system, but occasionally actions are taken not in
contemplation. Occasionally physicians may fail to iron out the details of a
plan and there's confusion. But I don't think it's a failure of the system; it's
the application of the responsibilities.
The Chair: Thank you all, witnesses, for taking time out
of what we know are very busy schedules to assist the committee in its
deliberations. We very much appreciate it.
For our third panel today, we have from the Canadian Association
for Community Living, Michael Bach, Executive Vice-President; from the Council
of Canadians with Disabilities, Rhonda Wiebe, Co-Chair, Ending of Life Ethics
Committee joining us by video conference from Winnipeg; from the Disabled
Women's Network of Canada, Carmela Hutchison, President; and from the Canadian
Society of Palliative Care Physicians, Dr. Susan MacDonald, President, and
Monica Branigan, Board Member and Chair, Working Group on Hastened Death. Thank
you all for being with us today.
We will begin with Ms. Wiebe via video conference. Please lead
off with your opening statement.
Rhonda Wiebe, Co-Chair, Ending of Life Ethics Committee,
Council of Canadians with Disabilities: Thank you for this opportunity
The Council of Canadians with Disabilities is the largest
organization in Canada made up of people with disabilities and speaks for people
with disabilities. Unlike other groups, CCD has been around for 40 years and has
worked to gain equality on a wide range of issues from transportation, to health
care, to education, to pension and to income. We look at a holistic picture of
what it is to live with disability and work to make sure we have the same rights
as other citizens.
We acknowledge the Supreme Court of Canada ruling in Carter
and appreciate that you seek input from our community. We in no way want to be
obstructionist to this legislation. Rather, we want to make sure it is the best
legislation it can be. We offer our perspective because we know what it is like
to have grievous and irremediable conditions. We live with them all the time.
I declare that I'm a person with disability. I've undergone 21
surgeries. I'm legally blind. I have mobility restrictions, and I live with
significant pain. I will continue to lose capacity, so I need to keep defining
what it is to be a person of value, dignity and autonomy.
Autonomy doesn't argue against safeguards because not everyone
has the same choices. If we can't understand our choices, it may be because they
aren't communicated in a way that is accessible to us. Many physicians don't
have the skills to explain choices in sign language or to someone with aphasia
or cognitive disability or people who are deaf-blind. If we think that we've run
out of choices about where and how we can live, what we can learn, what we can
earn, where we can go and how we can relate to our communities, we become
unnecessarily vulnerable. We lose resiliency. We lose autonomy.
Consider the many social factors that affect us. We still face
discrimination to the point where we need protection under the Charter. Canada
has a well-meaning but detrimental history of politics and policies regarding
disability, including eugenics, infanticide, institutionalization, forced
sterilization and segregation. Legislative bodies played significant roles in
these atrocities, and yet we've always been told by able-bodied Canadians that
“this is for your own good.”
Given this, what do autonomy and vulnerability mean? When you
acquire a disability, you have to adjust to loss. Every day you negotiate the
world in new ways to get around, to live, maybe new housing, new ways to learn
and to relate to others. As we espouse autonomy, we must acknowledge the
problems that lie in our lack of supports to just go on living and the
discriminations we face.
We're concerned that some people who request medical aid in dying
are vulnerable to the shock of these changes and that they are now part of a
socially marginalized group. Many groups facing social marginalization need
Charter protection. The news is filled with incidents where people from socially
marginalized groups want to end their lives. The rate of gay teenagers killing
themselves reached such significance that the worldwide “It Gets Better”
campaign was launched. The campaign offers a clear message to gay, lesbian and
transgender youth that despite soul-crushing prejudice, they're great the way
they are; it's going to be better if they can find the right people and the
right supports out there.
We ask you to adhere to the Supreme Court mandate to protect the
vulnerable “from being induced to take their own lives in times of
The CCD, along with organizations nationwide, endorses the
Vulnerable Persons Standard. Please remember the whole picture. Remember
that we are more likely to live in poverty, to be uneducated, to have
experienced abuse. We are less likely to be employed. Remember, we are more
likely to live in unsafe and inadequate housing. Remember, we face barriers in
our physical encounters with the world and stigma on a daily basis.
We want a good life along with a good death. A good death not
only means the right to medical assistance in dying but also the right to
accessible palliative care.
Dr. Susan MacDonald, President, Canadian Society of Palliative
Care Physicians: Good afternoon, Mr. Chair, honourable senators, and invited
participants. Thank you for the invitation to present our proposed amendments on
behalf of the Canadian Society of Palliative Care Physicians, and thank you in
advance for the hard work and thought that you will engage in on this manner.
Dr. Monica Branigan will speak to our proposed amendments.
Dr. Monica Branigan, Board Member and Chair, Working Group on
Hastened Death, Canadian Society of Palliative Care Physicians: We have
thought long and hard about this, and we have three specific recommendations for
amendments to Bill C-14 that will ensure that the right to palliative care is as
robust as the right to hastened death.
Currently, that is not the case. We do know that perhaps up to 3
per cent of Canadians will avail themselves of hastened death. Perhaps 10
per cent of us will die suddenly. That means 87 per cent of us can benefit from
palliative care, and yet we have no right to that care. It is currently a
patchwork and it really depends on where one lives. So we have thought about how
we can enshrine protection so that there is, in fact, a right to palliative care
in Bill C-14.
Our first recommendation is to amend the last paragraph of the
preamble to state: “And whereas the Government of Canada has committed to
develop legislative and non-legislative measures that would support the
improvement of a full range of options for end-of-life care . . . .” We would
ask that the following phrase be included: “including establishment of a
national secretariat in palliative care.”
A national secretariat has the scope to make sure there is a
consistent approach across the country and to implement a national strategy in
palliative care. This work has already been done. What hasn't been done is
figuring out how to implement it. This means that we can set and monitor
Canadian standards not only in the provision of end-of-life care but also in the
education of all professionals.
In addition, a national body is required to look at how to
support caregivers, not only how to provide information and tools but job
support and protection when they are caring for loved ones.
Finally, a national body is required to set up a public
information campaign, because the public does not know about palliative care,
does not know about advance directives, and has so much fear about death and
dying that causes so much unnecessary suffering.
Our second recommendation is regarding the eligibility
requirements, specifically (d): “they have made a voluntary request for
medical assistance in dying that, in particular, was not made as a result of
external pressure.” We would ask for this phrase to be added: “or lack of access
to services required to address the root causes of the request, including, but
not limited to, palliative care, chronic pain care and geriatric care.” By this,
if palliative care is not available, how can a request truly be voluntary? If
there is not an option, it's not voluntary.
Our third recommendation would be to add a new section in the
eligibility requirements to state: “provide documentary evidence that the
eligibility criteria have been met using federally established standards.” This
means that we would keep track of whether there has been access to the services
that people require or whether that is the reason that they are requesting
hastened death. We have really good data about why people are making this
request. As the act says that there is going to be a review in five years' time,
you want really good evidence to be able to make further decisions.
In summing up, we believe that the right to palliative care
should be as robust as the right to hastened death, and we have made three
specific recommendations that I hope you will endorse.
The Chair: Thank you.
Michael Bach, Executive Vice-President, Canadian Association
for Community Living: Thank you, honourable chair and members of the
committee. I'm pleased to present to you this afternoon on behalf of the
Canadian Association for Community Living. We're the national voice of people
with intellectual disabilities and their families, working for full citizenship,
human rights and inclusion of people with intellectual disabilities.
I want to begin by saying how saddened we are by how bitter this
debate has become. We wonder if we've lost common cause in this country about
what being compassionate means, our shared understanding of suffering, and a
sense of what it's going to take to protect the right to autonomy but also
respect vulnerable Canadians. In fact, the section 7 rights of all Canadians are
something for which we don't have a common approach, a common sense of purpose
going forward. We're very concerned about how divisive this is going to leave us
as Canadians and us in the health care system.
I want to say at the outset that, from the beginning, that is
what has motivated our proposals. We've been surprised at the ferocity of the
negative reactions to our proposals for safeguards for vulnerable Canadians. I
was struck by the representatives from FRMAC who said, “Listen, the main
objective here is to ensure access.” Absolutely, but the other objective that
the court said is how to protect vulnerable Canadians. We just don't think it's
necessarily that simple. Vulnerable Canadians don't show up with a sign on their
chests that say, “I'm a vulnerable Canadian. Don't give me access.” That's
what's motivated our work from the beginning
And it's true that we were in the Carter case. We argued
to keep the ban in place, because our concern was that would be the strongest
safeguard for vulnerable Canadians. We fully respect the decision.
When we returned, after the decision came down, to working on
safeguards, we worked with what the plaintiffs had put forward in the trial
decision as the safeguards that they said must be in place if we're going to
protect vulnerable Canadians going forward. We thought those were the parameters
that made sense to work in.
What the plaintiffs, legal counsel like Joe Arvay and B.C. Civil
Liberties, put forward was that there had to be a mandatory psychiatric
evaluation in all cases; there has to be a required palliative consultation; it
has to go to prior review; and there has to be a patient right of appeal to
decisions of prior review. Those are the proposals we've been putting forward.
The reaction we're getting now is that we're just being
obstructionist. We lost in Carter; now we're being obstructionist.
Actually, all we've tried to do is detail what the plaintiffs put forward in the
first place, because we agree with them. We agree with the submissions, and we
agree with what the trial judge arrived at and the evidence that she drew from
the plaintiffs on which safeguards were needed — evidence that the Supreme Court
of Canada definitively accepted and didn't challenge in any way.
Nonetheless, we are where we are. In the spirit of trying to
build common understanding — because June 6 is going to come, and if we don't
have the legislation then, hopefully we'll have it at some point, and somehow we
have to come back together.
In the few minutes that I have, I'd just like to say that a lot
of work we've done is to try and parse out what is meant by being vulnerable to
being induced to commit suicide in a time of weakness. There's extensive and
growing research on what inducement actually means, and we've got evidence from
the other jurisdictions where these systems are in place.
Extensive clinical literature points to five types of inducement.
The first is that people are induced as a result of distorted or disordered
insight as a result of a medical condition.
The second is the hopelessness and despair that comes from
self-stigma associated with a negative social and cultural status in society,
some of the things that Rhonda has talked about.
The third is direct coercion. We have those case examples from
Oregon, for example. There was one case where a man was given a choice by his
family caregiver about either going for assisted suicide —
The Chair: I have to ask you to sum up.
Mr. Bach: So the literature is there.
Our submission details our proposals, which build on what we've
heard from my colleagues, and asks to strengthen the standard of informed
consent. If we're not going to have prior review, let's at least get a study on
prior review in the preamble, given that we're looking at studies to make the
system more permissive.
The Chair: Ms. Hutchison, please go ahead.
Carmela Hutchison, President (DisAbled Women's Network of
I just want to briefly introduce our organization. DisAbled
Women's Network of Canada is a feminist cross-disability organization that deals
with addressing issues faced by disabled women with respect to advancing the
inclusion of women and girls with disabilities, and deaf women. Our overarching
strategic theme is one of leadership, partnership and networking to address the
issues of poverty, violence against women and disability.
Many of the protective principles in the preamble are not
supported in the body of the legislation. That's one of the biggest concerns we
have about the legislation. When you read the preamble, a lot of the things in
there are really good and very supportive, but they don't address the
intersectional barriers of ableism, racism, violence, poverty, discrimination,
the lack of disability supports and resources for women with disabilities to
lead safe and effective lives.
The five motions were made by a member of Parliament during our
February 4, 2016 presentation with respect to palliative care that we also
addressed earlier in this panel by our colleagues.
The Government of Canada must also comply with the Convention on
the Rights of Persons with Disabilities, particularly article 6.
In our amendments, we want to add a phrase where it says:
. . . strikes the most appropriate balance between the autonomy
of persons who seek medical assistance in dying, on one hand, and the interests
of vulnerable persons in need of protection and those of society, on the other;
And we want to add “. . . through the use of the Vulnerable
Persons Standard.” We want that phrase added in the actual legislation,
because the Vulnerable Persons Standard, which we've all referred to here, was
endorsed by 50 organizations. We think the use of the Vulnerable Persons
Standard will best address those safeguards, because it's evidence-based and has
been endorsed by 50 organizations.
In the preamble on page 2, we want to add a new clause, and say:
Whereas the Government of Canada has committed to uphold its
commitment to the Convention on the Rights of Persons with Disabilities . . . .
We want to add that clause in there, because that's one of the
bodies that Canada has committed to.
Then, where it says:
Whereas the Government of Canada has committed to uphold the
principles set out in the Canada Health Act — public administration,
comprehensiveness, universality, portability and accessibility — with respect to
medical assistance in dying;
There's a clause after that which should be struck. We want to
propose that it's struck:
And whereas the Government of Canada has committed to develop
non-legislative measures that would support the improvement of a full range of
options for end-of-life care . . . .
We want that whole next piece to be struck, and I've outlined it
in the brief.
Then we want to emphasize that the legislation must follow all of
the principles in the preamble. You must have legislation. There's not been one
bit of legislation that upholds the principles in the preamble.
Then there's the part in the Criminal Code about consent to death
and medical assistance in dying and what it means. We want all members of the
health care team to be able to effectively communicate among themselves and with
patients about medical aid in dying, because medicine is now carried out in
multidisciplinary teams. The actual act of medical aid in dying should be
limited to specialized teams defined within the legislation, but we must be able
to have all members of the health care team able to communicate with one another
and with patients.
With respect to “grievous and irremediable medical conditions,”
proposed paragraph 241.2(2)(c) states:
(c) that illness, disease or disability or that state of
decline causes them enduring physical —
DisAbled Women's Network Canada wants the words “psychological
suffering” stricken. The paragraph would then continue:
. . . that is intolerable to them and that cannot be relieved
under conditions that they consider acceptable; and
(d) their natural death has become reasonably
foreseeable, taking into account all of their medical circumstances, with —
— rather than “without” —
— a prognosis made as to the specific length of time . . . .
So strike out “necessarily having been.” There should be a
specific length of time that is remaining, because, again, there should be some
limits around that.
The Chair: I have to ask you to wrap up.
Ms. Hutchison: Under the “Safeguards” heading and
paragraph 241.2(3)(d), stating “ensure that the person has been informed that
they may, at any time and in any manner, withdraw their request,” how can a
person withdraw their request once medical aid in dying has actually been
Under paragraph 241.2(3)(g), “ensure that there are at least 15
clear days” —
The Chair: We have to move on.
We'll begin questions with the deputy chair.
Senator Jaffer: One thing that has come up repeatedly is
the issue of lack of palliative care. Dr. MacDonald and Dr. Branigan, one of
the suggestions you made was to expand the eligibility criteria to include a
lack of access to services required to address the root causes of the request,
including but not limited to palliative care.
We know that many people at the moment do not have palliative
care. I'd like to hear from both of you about how we ensure that citizens across
the country, especially in rural areas and Aboriginal communities, get access to
Dr. Branigan: I think our recommendations are all
interrelated. We need to have leadership at a national level to ensure that's
going to happen. This is Canada. It's not going to look exactly the same
everywhere, but we do need to have some consistent standards. I know that there
are some special challenges in rural areas, which I'll ask my colleague from
Newfoundland to perhaps address.
Dr. MacDonald: I work in a tertiary area Newfoundland, but
I often see and consult with patients all across the island and in Labrador.
There are ways of being able to do that now that don't require somebody to
physically be there. We can use technology in a variety of different ways to
facilitate the fact that we are very few in number and that our patients are
scattered all over.
Remember that palliative care is not just physicians. Physicians
are sitting in front of you today, but we're actually a very large team. Nurses
do a tremendous amount of work. There are far more nurses on the ground and in
communities than there are physicians. We utilize our community health nurses.
For example, in St. John's, we've trained all community health nurses in
palliative care so that they're able to provide some of that.
Senator Jaffer: Ms. Hutchison, DAWN of Canada has been
doing this work for a very long time and is very well recognized for their work.
It would be helpful if you could tell us the additional challenges women with
disabilities have in accessing palliative care.
Ms. Hutchison: They have the same challenges that have
been described throughout the presentations. Access is continually as difficult
and it doesn't seem to matter. Rural access and access for Aboriginal peoples
are more difficult, but the same exists even in urban areas. It always depends
on what funding is available and on how difficult the person is to manage in the
home environment versus in a long-term care setting. There's a lot of pressure
to always have people in the right place in the right setting, whether or not
that's the person's choice.
Quality of care is always a constant issue. It’s a perennial
issue because palliative care, home care and continuing care, like all the
levels of care, were never put in the Canada Health Act in the first place. Of
course, people are afraid to open up the CHA to do it. We need to step up and
get those national standards in place. We need to do the right thing.
The sad thing is that before even one dollar is spent on medical
aid in dying, we should have all these things in place first.
Senator White: Dr. MacDonald, I understand you surveyed
your membership in relation to palliative care medical practitioners providing
physician-assisted suicide and that overwhelmingly they did not support being
involved. I take it that means the organization you represent does not support
an obligation on the part of physicians, or at least your physicians, to be
engaged in any way or to be referring as well? Is that correct?
Dr. MacDonald: Our membership discussed and was asked
directly: Will you do this? Will you provide the medication? Will you come in
with the needle? That's what people were saying they would not do.
I would say that every member of the organization and every
palliative care physician I've ever met will respond to a cry for help. If
somebody says that they're suffering, “please help me,” that's what we'll do.
Regardless of the choices they make about treatment, whether it's chemotherapy,
another surgery or medical aid in dying, we'll help our patients if they ask us.
Dr. Branigan: May I frame it in a way that I think might
be helpful for you? We've had to work incredibly hard for people to even accept
a palliative care referral because there is so much fear about death and dying.
Our concern was how to make sure that palliative care is seen as distinct from
the act of hastening death. We want palliative care to be a welcome and safe
place for people who will never access that and for people who are considering
that as something they want to do.
When we surveyed our membership, 26 per cent of physicians said
they would consider it. It was not like they were not going to be involved at
all. We really want to make it a distinct act from palliative care and to ensure
that palliative care is perceived as a safe place for all people.
Senator White: About 74 per cent said they did not believe
they should be involved; is that correct?
Dr. Branigan: Yes. You also need to understand the context
of that. We're very concerned, less so as time goes on and more discussion takes
place, but there was almost a knee-jerk reaction: “Oh, hasten death? We'll just
refer to palliative care.” You can imagine the fear that engendered. That was
also reflected in that number.
Senator White: In the proposed legislation, there's an
opportunity that the Minister of Health may make regulations in relation to
tracking, which I think should be there. However, I would suggest it needs to be
a requirement for a number of reasons, such as doctor shopping and health
practitioner shopping. As well, if we are to review this in five years, we need
something to review beyond anecdotal evidence. Would you suggest that it should
be locked into the legislation rather than a suggestion that the minister
considers such regulations?
Dr. Branigan: I think it should be a requirement, yes.
Senator Plett: I have two questions, one for Ms. Wiebe and
one for the Canadian Society of Palliative Care Physicians, and of course others
can answer as well.
Ms. Wiebe, let me do as my colleague Senator Batters did earlier
with a witness from Saskatchewan. As a fellow Manitoban, I welcome to the
My question, Ms. Wiebe, similar to that of Senator White, has to
do with conscientious objection. Would you support the right of physicians,
nurse practitioners and pharmacists to conscientious objection to the point
where they would not do a referral but maybe give somebody a list of people that
would be involved and that they would not have to go beyond that?
Before you answer, Ms. Wiebe, I'll ask my other question.
To the doctors from palliative care, my father was in palliative
care the last two weeks of his life about six years ago and got marvelous
treatment. I'll always have the utmost respect and appreciation for the people
who work in that area.
The College of Physicians and Surgeons were concerned about one
aspect of the bill and the fact that the bill suggests assisted dying should be
an option of last resort. I was alarmed by that. I thought that all physicians
should want that. How would you feel? At what point should a person ask for this
if they do ask?
I'll let Ms. Wiebe answer and then if you would.
Ms. Wiebe: Thank you for your question.
The CCD has not taken a specific stance on physicians who choose
not to participate. However, I would say that we would support those physicians
who because sense that there is not equal protection for vulnerable persons,
that medical assistance in dying is not considered for those only facing end of
life, that medical assistance in dying is offered by someone who is not
demonstrating voluntary and capable consent or that a request for medical
assistance in dying was not explored to carefully see if the cause of the
patient's suffering was induced from psychosocial or non-medical conditions. If
an assessment of suffering and vulnerability doesn't take place, we would
support those physicians who choose not to participate.
Dr. Branigan: Can I ask you to really give me a short,
sweet question in your comments? I want to be able to address it.
Senator Plett: Let me again say that the College of
Physicians and Surgeons has a problem with the fact that the bill says that this
is supposed to be an option of last resort, to ask for medically assisted
suicide, and they said they do not agree with that. I asked them: Should it be
the first resort? At what point should a person ask?
My question is: Would you agree with the College of Physicians
that this should be anything other than a last resort, that you would ask for
Dr. Branigan: I think it's going to be up to the patient
and their perception of their degree of suffering. I don't think it's up to the
physician to say, “Hey, have you thought about it?” I think it's a question of
exploring the suffering, and, if the patient is asking for other options, then
of course you can mention that as an option.
My work is limited to talking to patients in the community and
providing supportive counselling, so I've had many of these discussions before.
My experience has been that patients are very happy to initiate that discussion
and want more information about that.
Senator Plett: Let me rephrase the question a little bit.
Do you not agree that, from a medical perspective that you should explain every
option to the person and, in fact, ask them whether they wouldn't rather want to
pursue some other option than dying?
Dr. Branigan: Thank you for that clarification. Do I
believe that all options should be well explored? Absolutely. A lot of
physicians do not know how to describe what palliative care is. That is a
The other concern is, if you were a patient who was seriously
entertaining this, would you really want to get this information from somebody
who thought that the act itself was abhorrent, and the only reason they were
providing this information to you was so that they could avoid sanction from the
College of Physicians and Surgeons of Ontario?
I think that access is a huge problem. I don't agree that making
an effective referral is the solution to that problem. Who do we refer to? That
is an ineffective solution.
The best solution is to have a coordinating system at a
provincial level, that is, a coordinating system to connect skilled and willing
providers to eligible patients.
We do this in other areas like transplants. Look at Trillium
Gift of Life. That's exactly what they do. Here is a patient; here is an
organ. How do I make all of the links for them?
The system is what's going to make it work, not making an
effective referral because some physicians — and this is a minority of
physicians — feel that, “If I make a referral, I am saying I approve of this and
am directly linked to the act.”
Many people would say —
The Chair: I'm sorry.
Senator Dagenais: Thank you to our guests. I have two
short questions. The first is for Dr. Branigan. Do you think that offering
better access to palliative care might significantly reduce the number of people
who would turn to medical assistance in dying?
Dr. Branigan: The question is whether palliative care
would reduce the number of people requesting this? I am not sure. There have
been a lot of studies to suggest that, even for people in Oregon who do get a
prescription, the vast majority of them are involved in palliative care. There
will be patients who really value control, and that's not something we can
Will we be able to divert some people if there is accessible
palliative care from choosing that? I think that is possible. I suspect,
though — I don't want to appear arrogant — that we're not going to be able to
ameliorate all suffering to a level that will be acceptable to all people.
Senator Dagenais: I have a quick question for Mr. Bach. If
the bill was adopted as it stands, would there be cases of vulnerable
individuals who would not be protected under Bill C-14? If so, could you give us
Mr. Bach: Thank you for the question.
We're concerned about people who may be induced, like the direct
coercion that I spoke about, where a man was given the choice of either
long-term care or assisted suicide in Oregon. That spoke to a family caregiving
situation, a family that was stressed and burnt out. Our concern is that the two
medical professionals identified in Bill C-14 don't necessarily have the
expertise to address that issue.
Surveys in the U.S. indicate that only 2 per cent of physicians
have any experience or expertise in seeing the signs of elder abuse. Elder abuse
is obviously going to be a huge concern in this system.
That's why we've proposed in our amendment, in the brief we've
given you, that getting a vulnerability assessment is essential. If those two
medical professionals could require that a palliative consultation has to be
done as part of that, our understanding is that palliative physicians can bring
a much broader expertise.
I appreciate the amendment of our colleagues to an assessment
that would ensure that a full range of options has been assessed, not only the
medical options, but the social and psychosocial options to address people's
Senator McIntyre: Thank you all for your presentations.
Mr. Bach, in the brief submitted to this committee by your
association, it is recommended that six specific amendments to Bill C-14 be
made. In one of your recommendations, you call for a prior review of medical
assistance in dying by a Superior Court.
Earlier in these proceedings I raised the issue of judicial
authorization with the College of Physicians and Surgeons of Ontario. I have to
admit that they were not very receptive to this idea, although such a system has
been in place since February of this year and will remain in place until June of
May I have your thoughts on this, please?
Mr. Bach: I think it's very interesting that the Supreme
Court saw fit to require judicial authorization, rather than simply having two
physicians make the determination in the interim period. Certainly the Supreme
Court seemed to think that judicial authorization fit the reasoning of its
original Carter decision.
We've also supported the work by David Baker and Gilbert Sharpe,
who have presented a draft bill for prior review and detailed amendments to the
Criminal Code, and would be supportive of that.
We just think that a physician's job is to examine the causes of
suffering and to provide options for people to consider, not to authorize the
intervention that is intended to bring about the termination of someone's life,
and that we should separate that out in order to protect the integrity of the
health care system.
Senator Batters: Thank you very much all of you.
There have been a couple of references in this particular panel
to Oregon. I want to bring to the attention of those who may be tuning in or
listening to these proceedings that, in Oregon, their legislation requires that
a person have a terminal illness and also be at the end of their life.
Currently, this bill doesn't provide either of those things, so it is sort of
amplified when you look at that example.
To Mr. Bach, in one of your suggested amendments to this
legislation, you speak about the necessity of having a safeguard that would
require a specialized counselling for somebody seeking medically assisted
suicide. I'm wondering if you could tell us why you think that that is a good
requirement to have here.
Mr. Bach: The set of recommendations is really driven by
the requirement for informed consent that the Supreme Court was really clear
about. Given the finality of this decision that requires not my right to
negative autonomy, which is to refuse treatment or have treatment withdrawn, but
to ask of the health care system to make an intervention intended to terminate
my life, we should ensure that people are fully informed.
Given that in Canada we only have five provinces that have
statutory standards of informed consent, the guidelines for practices of
informed consent issued by the regulators vary across the country. We actually
don't have a national standard or a national set of practices around informed
consent. And the bill, as we also note, only refers to external influences,
which is a much narrower standard of informed consent that the Supreme Court
gave in the first place, which is that people who may be induced to commit
suicide, that that inducement has to be identified and addressed.
In our view, that specialized counselling would be one of the
ways in which we could establish a national standard to ensure that people are
Senator Batters: Would that be amplified by the fact that
the Supreme Court of Canada contemplated physicians, but here this bill has
nurse practitioners and potentially no physicians involved in providing
approval, assessing competency, and administering assisted suicide. Is that
amplified by that?
Mr. Bach: Absolutely. We have a real concern that this is
being driven largely by the right of access, which we respect, but the
mechanisms to ensure that vulnerable persons are identified and addressed are
not in place. It certainly would help to address that concern.
Senator Batters: Ms. Hutchison, you spoke about how you
wanted to have “psychological suffering” stricken from the bill entirely. I
agree with you; I've advocated for that for some time. You also discussed
problems with the preamble. I find it problematic that the preamble is the only
place that specifically refers to having psychological suffering as a sole basis
not included as a way to access physician-assisted suicide currently. Would that
be a concern to you as well regarding the preamble?
Ms. Hutchison: Can you just repeat that part of the
Senator Batters: You talked about having “psychological
suffering” stricken from the operative provisions of the bill. I've noted in
past discussions that I've had about this bill that I have a problem with the
fact that the only place in the entire bill that specifically refers to
“psychological suffering” as the sole basis for accessing medical-assisted
suicide is in the preamble and not in the operative parts of the bill. I think
that could lead to a conclusion that somebody could access physician-assisted
suicide solely on the basis of psychological suffering, because it isn't in the
operative provisions of the bill. Is that your concern as well?
Ms. Hutchison: Yes, because I actually thought from the
preamble that it wasn't, and then I saw in the operative part that it was. I
would like them to be consistent, and I would like it out, yes.
Senator Batters: Absolutely, to be totally clear.
Senator Joyal: Welcome.
I am wrestling with your proposal to specifically include the
offer of palliative care as a precondition for a person to decide if he or she
is entitled to physician-assisted death, especially on the basis of your
testimony and information that is available generally to the Canadian public
that less than 10 per cent of Canadians will have access to palliative care. In
other words, if we, in practice, give way to your proposal, it would mean that
we would restrict physician-assisted dying to only 10 per cent of Canadians.
I totally support the objective of the extension of palliative
care, but to me it's more a social policy that should be introduced into the
Canada Health Act than into the Criminal Code. What we're doing here is amending
the Criminal Code. If we are to put in the Criminal Code that the existence of
palliative care has to be available in any region of Canada, a major urban
centre or the most remote part of the country, we will restrict the exercise of
the right to an extensive point that, in my opinion, it would be
unconstitutional. It would be found wanting in relation to the way that the
Supreme Court has unanimously interpreted section 7.
Dr. Branigan: The amendment, as we recommended it, was not
intended to block access. The 10 per cent number you have is probably not
correct and speaks to the fact that we have very poor data. Again, it reinforces
the need for a national secretariat.
I think Dr. MacDonald was pointing to the fact that there can be
different ways of connecting than necessarily having a specialist in front of
The point is, do you want a bill that doesn't have that?
Basically you're saying if it's not available, then we say it's okay as an
alternative to saying, “I don't have palliative care, my family is not
supported, I'm feeling like a burden, so a hastened death sounds like the best
option to me.” Is that what you want?
Senator Joyal: That's not what the Supreme Court,
respectfully, has said. The person has to suffer from grievous and irremediable
condition and bear suffering that is intolerable to them. The criterion is not
“you're sick of life.” One day I might be sick of life, but I'm not suffering
from a grievous, irremediable and intolerable position. I don't think we should
stretch the criteria too much.
Dr. Branigan: I'm not saying we stretch it. The concept of
burden is a very big reason that people in other jurisdictions are granted
access to hastened death. For some people, it is grievous and irremediable that
they may require assistance for toileting, within context. If that assistance is
being provided by your family because you don't have access to services, that
can directly influence whether you make that request and you don't see that
there is another option.
I understand your concern. You don't want it to be something that
means that it's just not workable, but we need to start gathering data and
finding out if this is behind some requests, because that's clearly not what we
Senator Joyal: As the bill proposed, and as the special
joint committee proposed in its report in February, if two doctors have to
examine the capacity to consent and come to a conclusion about the grievous and
irremediable physical or mental condition of the person, and then that the
person is in a condition of intolerable suffering, the social pressure of the
family is not an element that the doctor has to weigh before concluding that
that person has a right to physician-assisted death. The second doctor will have
to go through the same exercise.
Again, as much as I am in support of palliative care, mixing the
two here is, in my opinion, a line that is very difficult, personally, for me to
Dr. Branigan: Let's phrase it this way: How can it be a
voluntary request if you don't have access to an alternative?
Ms. Hutchison: I fit the clinical definition of the
criteria for this intervention. I actually gave my first presentation to the
joint committee from the hospital.
In the time that it has taken for the committee to make its
recommendation and draft the measures for this legislation, I still have not had
even one service since my discharge from hospital — not one service. That's what
the problem is.
And the solution is not to kill me, sir. The solution is to
provide the services. I will not go down. I will not die. I will live. I will
live. I will choose life, and I will not be considered revolting.
An Hon. Senator: Hear, hear.
Ms. Hutchison: I will not be considered undignified.
It is my husband who sits in this room that provides the very
care, and sometimes when I —
The Chair: I gave you limited time.
Ms. Hutchison: No, I understand that. I have one line.
Sometimes, in other circles when I do have to describe in detail
what does happen, I'm sometimes told, “Oh, that's disgusting. You mustn't say
that in public.” And I can't even describe, because we are limited for time,
what we do need to go through. The solution isn't to kill us.
The Chair: I'm sorry.
Senator Joyal: Nobody suggested you should be killed.
The Chair: We can't let this kind of conversation go on.
We have other senators who wish to ask questions.
Senator Lankin, please.
Senator Lankin: Thank you very much.
Mr. Bach, I want to pursue the recommendation for prior review.
We had the exchange earlier, as you heard, to physicians who are saying, “Well,
this is not a legal determination; this is about medical. Let's medicalize this
and not legalize this.”
It's interesting that you refer to Gilbert Sharpe, who was
for many years head counsel for the Ministry of Health in Ontario and was very
central to the development of the consent to treatment regime there, including a
specialized tribunal determination of capacity to consent and provisions for
I have a gut reaction that says that I don't think we should be
going to the courts on this all the time, but I'm interested by this
recommendation of a more specialized review tribunal that would probably draw on
medical expertise and other expertise.
Could you briefly, because we don't have a lot of time, describe
what that might look like and how you think it fits in with the current consent
to treatment, which I acknowledge is different in different provinces?
Mr. Bach: I think the tribunal in Ontario, the Ontario
Consent and Capacity Board, is exactly the model that Gilbert Sharpe had in mind.
I won’t speak for him. It's certainly the model we had in mind
and it's an excellent example.
A tribunal requires three people — a physician, a lawyer and a
public member, and there is a roster of them — to consider applications where
consent capacity may be at issue.
In the last annual report, 2014-15, they heard 6,500 applications
and they adjudicated about 55. They are required by law to issue decisions
within seven days. In speaking with members of that Consent and Capacity Board,
they've issued them in emergencies within 24 hours.
They work by video to ensure that rural and remote areas can be
served, so it is a model in terms of the number of applications considered in
Ontario. I hope we're not considering more than 6,500 a year in Ontario — we
might be — and being able to turn it around quickly.
With all due respect to our colleagues from the colleges, this
isn't just a medical decision because the ban wasn't struck down. This is a
Criminal Code exception to the ban on assisted suicide. It is an exception in
the Criminal Code, and we think that requires some judicial oversight to ensure
that the criteria have been met to justify an exception in an exceptional
circumstance to the ban.
The Chair: I thank you all. I want to apologize for
interrupting a number of you on occasion. We all appreciate your passion on this
subject, especially you, Ms. Hutchison, but we are operating under some very
challenging timelines. I certainly hope you appreciate that.
Thank you for being here and assisting us. It is very much
For our final panel today, we have joining us, from Dying with
Dignity Canada, Dr. Arnaud Painvin, Member, Physician Advisory Council. From the
Alliance of People with Disabilities in Carter v. Canada, Margaret
Birrell, President; and Angus Gunn, Legal Counsel, who are joining us from
Vancouver by video conference. And we also have with us Léa Simard. Thank you
all for being with us today.
Doctor, I gather you are going to lead off with your opening
Dr. Arnaud Painvin, Member, Physician Advisory Council, Dying
With Dignity Canada: Thank you, Mr. Chairman. On behalf of Dying With
Dignity Canada, we would like to thank the committee for this invitation,
and I would be happy to answer any questions in French, too, if there is a need
I would like to start with my conclusions. The number one point
is that Bill C-14 is very restrictive and therefore does not respect the clear
directives of the Supreme Court in the Carter case, the directives
that the Crown should follow.
Number two, Bill C-14 is discriminatory in many areas and,
de facto, is not compliant with the Charter.
Number three, much of its wording is vague, unacceptable and
prone to painful confusion from patients, health care and legal providers,
especially regarding the time frame of the disease and timing of the decision.
Number four, there is no mandatory two- or three-year review of
the law based on public demand.
Bill C-14 is unacceptable discrimination with restrictions in
three main areas. Bill C-14 defines disease as “incurable.” However, the Supreme
Court qualified the medical condition as “. . . does not require the patient to
undertake treatments that are not acceptable to . . .” her or him. There is a
big difference between the wording of Bill C-14 and the directive of the Supreme
This is an unacceptable discrimination and restriction, since
Bill C-14 is excluding patients with serious and irremediable medical conditions
who do not wish to undergo further treatment such as, for example, chemotherapy
or radiation for their painful physical and mental side effects. In other words,
Bill C-14 says if you do not accept proposed treatments, you cannot request
medically assisted death. This section is also not compliant with the directive
of the Supreme Court.
The proposal from Dying With Dignity Canada is to remove
paragraph 241.2(2)(a) and replace it with: “they have a serious illness,
disease or disability that is irremediable or for which there is no treatment
acceptable to the patient.”
Regarding mature minors, the bill should consider minors
suffering from chronic and irremediable conditions and requesting medically
assisted death. In my practice, I saw many children at the SickKids
hospital in Toronto suffering from end-stage disease and requesting end-of-life
treatment. Criteria for selection should be based on informed consent, mental
competency and maturation, and not based on age.
There are examples of medical assisted suicides in Belgium and
Bill C-14 is prohibiting the use of advance request for medically
assisted death. This rule is discriminatory since it denies access to assisted
dying for still mentally competent Canadians suffering from dementia or other
chronic degenerative conditions such as Huntington's disease. If they were to
become mentally incompetent, they would not have access to the service.
We recognize that advance request is a very complex issue and
needs to be extremely clear in order to answer the questions when, who and how
to impose the pre-existing request of a person now debilitated.
Advance request for medically assisted death exists in Belgium,
Netherlands, Luxembourg and Colombia. The proposal from Dying With Dignity is to
remove paragraph 241.2(2)(b) and include a section related to advance
The bill is unacceptable regarding restriction and discrimination
regarding time frame. Bill C-14 states: “. . . advanced state of irreversible
decline in capability . . . .” This wording would impose years of severe,
unwanted physical but mostly mental suffering upon patients who have
irreversible debilitating chronic disease such as multiple sclerosis and ALS.
Those patients may not have reached the end stage that is unpredictable and may
be for a long duration. As a result, the wording risks violating the Charter
with regard to right to life, liberty and security of the person.
The Chair: I'm going to have to ask you to sum up, please.
Dr. Painvin: We consider Bill C-14 discriminative in many
areas. We consider Bill C-14 very restrictive; therefore, it does not reflect
the direction of the Supreme Court. We would like to have a mandatory two- or
three-year review of the law based on public demand.
The Chair: Thank you, sir.
We will now move to Ms. Birrell and Mr. Gunn. Please proceed.
Angus Gunn, Legal Counsel, Alliance of People with
Disabilities in Carter v. Canada: Thank you for the opportunity to appear
before you this afternoon.
Before you, on your right, is Margaret Birrell, who is president
of the alliance. My name is Angus Gunn, and I have served as litigation counsel
for the alliance since 2011.
We understand that you may have copies of our written brief. I
have been asked to provide some prepared remarks this afternoon that focus on
just two of the amendments suggested in that brief. Neither of those amendments
was accepted by the House of Commons standing committee, but the alliance brings
them to this chamber of sober second thought in the hope that they may find
greater purchase. Ms. Birrell will be pleased to respond to any questions the
committee might have.
The first amendment is to restore the efficacy of advance
directives. Bill C-14 does not take up the special joint committee's
recommendation that the use of advance directives be permitted. The Charter
rights of those who suffer from dementia are no less deserving of protection
just because their enduring and intolerable suffering results from an illness
that also robs them of decision-making capacity.
The government has provided two rationales for excluding advance
directives, and we say that neither withstands scrutiny. First, it is said that
they generally do not provide reliable evidence of a person's consent at the
time that medical assistance in dying would be provided. Secondly, it is said
that disallowing advance directives would guard against the effects of
But advance directives do provide compelling evidence of a
person's consent while the capacity to give consent remains intact. Dementia
ultimately destroys the capacity to give consent. To insist upon it at the time
of medically assisted dying is to require the impossible.
Are there really individuals who decide that they would rather
die than weather the storm of, for example, Alzheimer's but then later change
their mind because Alzheimer's isn't so bad after all?
Even if those people exist, why should their vulnerability trump
that of the thousands of individuals whose wishes have not changed but whose
illness robs them of the ability to confirm that fact?
Why is the blanket ban that was rejected in Carter for
sufferers of ALS acceptable for sufferers of dementia?
If a competent individual makes an informed decision that, at a
certain stage of decline, the quality and value of life will have degraded to a
point where medical assistance in dying is desired, why on earth is that
decision not entitled to respect, and who is the state to discard that decision
as reflecting inaccurate assumptions?
Excluding advance directives, even during six months of further
study, will negate the Charter rights and cause needless suffering for thousands
of Canadians. The alliance urges the committee to restore the efficacy of
advance directives in relation to medical assisted dying.
The second amendment that we urge upon the committee is to remove
the requirement that death be reasonably foreseeable. Bill C-14's requirement
for reasonable foreseeability of death is not Carter
compliant; witness that Kay Carter herself suffered from the non life-limiting,
non-terminal disease of spinal stenosis.
The government tries to defend this requirement from a policy
perspective, but Carter established a floor of constitutional protection,
and the least that Bill C-14 must do is implement that floor. No policy
rationale can legitimately derogate from that constitutional minimum.
In any event, we say that the government's policy rationales are
already served by the many other elements of the Carter test.
The controversy over whether Ms. Carter could have won in the
litigation but be ineligible under Bill C-14 illustrates another problem with
this provision. Canadian criminal law adheres to the principle of certainty:
prohibited conduct must be fixed and knowable advance.
Canadians should not have to guess about the criminality of their
actions based upon a case-by-case application of concepts with no settled
meaning, such as “reasonably foreseeable” and not too remote. We urge the
committee to remove the requirement for foreseeability of death.
We thank you again for the opportunity to participate in the
important work of this committee.
The Chair: Thank you.
For the final opening statement, Ms. Simard.
Léa Simard, As an individual: Good afternoon. I am going
to tell you the story of my mother, Louise Laplante, who died on March 13. It
will be difficult for me to talk about because it is very emotional. She starved
herself to death over four days at the home where my sister and I live because
Canada could not offer her medical assistance in dying. She had multiple
sclerosis and the legislation in Quebec does not allow for medical assistance in
dying because she was not at the end of life. What I hope for, by testifying
here, is that in my country, Canada, we will be able to remove the criteria of
reasonably foreseeable death, which is too vague, and that takes away hope from
many people who will not necessarily die quickly.
Quebec has already adopted legislation that is a little
restrictive. What I am also seeking today is to try to remove restrictive
details, especially for people like my mother who have a degenerative disease.
My mother’s suffering was constant, and she no longer had a quality of life. Her
life was nothing but suffering, but she was very aware and lucid. After
consulting many doctors who wanted to help her, they all agreed that she met
several criteria, but that she was not at the end of life, according to the
However, in analyzing the Canadian bill, I was sad to see that my
mother would not be entitled either, like Ms. Carter. We had to go through this
experience because our country does not allow us to respect the will of a person
whose life has ended, who is suffering enormously and consciously. After several
examinations, it was agreed that she was suffering too much, but that it was not
possible to respect her wish to leave her body behind.
I am here to testify to put a little humanity into this
committee’s study. I lived through this, and many families will continue to live
through this if Canada does not amend Bill C-14. In everyday life, if people are
not very aware of what is going on and they hear about this bill, they are glad
because they think it might help people. However, when we look more closely, we
see that, once again, we will need to find open-minded doctors and, once again,
the doctor will have to assess the criteria of “reasonably foreseeable” death.
So if we are working with doctors who are afraid — and almost all of our doctors
were afraid — they do not know what to do. We need to remove the threat hanging
over doctors. I hope there will be an information campaign on this legislation.
I hope that doctors will be made aware that they do not have to fear helping
anyone to die. We often felt this fear when we asked for help because the
doctors were too afraid to help us. This threat that hangs over their heads is
unbelievable, and I truly hope it will be removed so that doctors can help
certain patients and respect their will, like in the case of my mother, who
suffered greatly, but who was lucid and whose death was not foreseeable.
So she had to go to Switzerland or to a country other than Canada
to get access to medical assistance in dying, or let herself starve to death. It
is unbelievable. I cannot believe that in 2016, here in Canada, the legislation
is not more open so that people with incurable diseases who are experiencing
unbearable suffering cannot get help to die with dignity. Thank you.
The Chair: Thank you very much.
We'll move to questions now, beginning with the deputy chair of the committee,
Senator Jaffer: Thank you to all of you for your
Ms. Simard, I want you to know that we heard you very clearly,
and through our deliberations we will certainly be thinking very much on what
you said. Thank you for sharing such a difficult issue with us. It's not easy,
but we appreciate it.
I have a question for Ms. Birrell and Mr. Gunn on advance
directives. I know when you spoke in the house, if I understood you correctly,
you said the issues of mature minors and mental illness need to be studied a
little further but that advance directives have been studied sufficiently, and
there are examples from the Netherlands and Belgium.
How would you envision a system of advance directives working in
Canada when informed consent can no longer be given without further study?
Ms. Birrell: First, it has to be in the act. It has to be
secure within the act. We have advance directives in B.C. and a
representation agreement. However, it's not about assisted dying; it's about
your choices of your health care.
Under the system in B.C., I've been involved in several cases,
and so I think the models are there. We don't need a lot of time to put in the
advance care directives — for the individuals to sign what they want, it is
written down. It is verified and it is final. When they want to implement — no
pressure from anybody else — and want the assistance, then it should be granted.
Senator Jaffer: Dr. Painvin, in your brief you said that
not having advance directives is discrimination, especially against people who
have degenerative conditions. Could you expand on that, please?
Dr. Painvin: Yes. I'm taking an example here. Suppose I've
been diagnosed with the beginning of Alzheimer's. I have memory problems, but
I am still extremely competent mentally. I decide to sign my request for
medically assisted death one day. Of course, I don't know when. Suppose that 20
years later I'm becoming competent. The problem with advance directives is the
following: When to decide to enforce my directive, who will do it and when.
Those questions are extremely difficult.
When we look at the literature in Belgium, the Netherlands,
Luxembourg and Columbia, all of them have advance directives for medically
assisted death. There are two criteria: when the patient is in a coma; and when
the patient cannot communicate any more. It looks like those two criteria are
used to enforce the decision of the patient who decided 20 years before to have
medically assisted death.
The problem is extremely complex, absolutely. We at Dying with
Dignity Canada believe we should look at that. This is critical and yet
extremely challenging to write into law — extremely difficult.
Senator White: My condolences, Ms. Simard. Thank you all
for being here.
Doctor, I want to focus on under 18 years of age. What parameters
would you put on a youth? I think you talked about which ones you don't agree
with. Can you explain how that would work otherwise?
Dr. Painvin: I saw many kids suffering from end-stage
disease, and kids even at 12 years old were very mature. I don't think it would
be a mistake to use age as a criterion. Using age will be very arbitrary,
because we have kids of 14 years of age who are extremely smart and understand
well their disease and the prognosis of their disease. People talk in Canada
about having it be 16 years or 17 years or 15 years. In Belgium, for example,
it's 12 years old. In the Netherlands it's 12 years old. How they came up with
this number, I don't know; but it's pretty young.
My answer to you, senator, is that we should avoid age and look
at the maturity of the kids for their reaction to their disease and listen to
Senator White: As you know, we have a lot of legislation
in this country that pertains specifically to age because we believe that young
people often aren't at a specific place in their lives to make those cognitive
decisions on their own. You've seen a lot of young people who have decided to
stop treatment. But there's a difference between stopping treatment and taking
their lives, or assisting them in taking their lives. I can't square the circle
on a child making the decision to end their lives regardless. Adults are there
to protect them.
You're not saying there's any right age. You're saying to let
medical personnel deal with a 12-year-old and make that decision with them. Is
that what you're suggesting?
Dr. Painvin: It's extremely difficult. I saw many kids,
extremely young, knowing very well the prognosis of their disease. Yes, 12 years
old sounds extremely young. It's not up to us and it's not up to me to tell you
what age it should be. I strongly believe that Canadian minors should be able to
have access to medically assisted death as long as they are mature enough and
are very well informed. That's the only thing I can tell you. Whether it's 16,
17 or 18 years old, I have no answer.
Senator Baker: Thank you to the witnesses for their
excellent presentations. I have to say that I completely agree with the
presentations as far as advance directives are concerned. Could you verify for
the committee a fact about advance directives? Dying with Dignity Canada
suggests advance directives in all provinces, with models and so on.
As I recall the nature of advance directives, on the last page is
a very long survey, the last item is: If the hospital doesn't agree with my
directive, then I hereby wish to go to another hospital. Above that is: If the
care giver does not agree, then I wish to have another caregiver. At the top of
the page, there's a key section that says in the first part what you refuse,
i.e., you may refuse life-sustaining measures; and then it says what you accept.
The first thing there, which strikes me, is medication to relieve pain that may
cause the hastening of your death. It's in the advance directive today in Canada
in every single province. So I can't see why there is an objection to having
advance directives covering this bill. Could you verify that that is actually in
your suggested advance directives for Canadians to have today?
Dr. Painvin: I will do that.
I worked 32 years in intensive care. We all know that the use of
medication to ease pain is used frequently to activate the process, so that's
probably what you are referring to.
Senator Baker: Even though it will bring on my death; it
is there in black and white, that you are signing.
Dr. Painvin: As a physician, I would never accelerate the
rate of morphine in order to kill a patient. That's not yet acceptable.
Senator Baker: You must abide by the advance directive.
The law says that.
Dr. Painvin: Absolutely. But, senator, there's a problem
with advance directives. It's not just about medically assisted death; it's
about advance directives in general. Do you want intensive care? Do you want
The problem with that is who is going to have access. If I am in
a car accident alone, I end up in hospital and I have my advance directives
somewhere, how will the health care providers have access to them? How will the
paramedics on the road tube me and start CPR on me? If I refuse, they have no
way of knowing that I have an advance directive.
At DWD, we are thinking about some sort of card that you have in
your wallet, and the paramedic, by law, will have to look at your advance
directives. Otherwise, if nobody looks at your advance directives, there are no
advance directives. The problem of advance directives for conventional care or
for medically assisted death is a very complex issue.
I would like to say one thing here, senator. Bill C-14, for us at
Dying With Dignity — and for many Canadians — is a huge surprise because it does
not respect the directive of the Supreme Court of Canada. It's clear.
Number two, for obvious reasons, the bill is restrictive for
political reasons. They want the bill to pass, especially with a free vote.
So we have a big problem with it. The bill has to be amended. If
not, it will be challenged in court immediately. The first case will be
challenged in court. The judge will look at the bill, will look at the Supreme
Court, and the Crown will lose.
Senator Dagenais: Ms. Simard, I would like to thank you
for testifying today. To help us, within the committee, to understand what
families like yours go through, I would like to know when your mother made her
decision, in what environment, what advice she was given, if any, and to whom
she spoke about her concerns. I will end my question with this: from a family
perspective, was there unanimous agreement?
Ms. Simard: I will start with the last question. Yes, it
was unanimous. She had been talking to us about it for many years. Since she was
a spiritual person, she was not afraid of death, and neither were we. She
educated us about this.
She had been diagnosed 15 years previously and, in the past
five years, her situation deteriorated after she fell and broke her hip and
clavicle. She ended up in a wheelchair. There was a serious decline in her
situation after this, especially in the six months before her death.
She received home care through the CLSC where she lived, in
Longueuil. It was enough for her because she wanted to maintain some
independence. She was a very strong woman, and a very solitary person, too. She
preferred receiving as little care as possible and staying at home. We were
quite satisfied with the care she received at home. However, the situation
became worse and worse, to the point that she was very afraid at night. There
was no care or visits at night. So she would be 12 hours without visits or care,
and the situation became impossible.
So we met with a social worker to try and get an intermediate
resource, but things did not work and, after an assessment, we were referred to
a residential and long-term care centre, or CHSLD. Moving in to the CHSLD was
the turning point in her decision. It was hell for her, at 66 years of age, to
be among residents who were on average 85 years old, and who were not at all
there. These were atrocious conditions for someone who was solitary, independent
and who, all of a sudden, became totally dependent, in an environment she hated.
As an aside, my mother was vegetarian. She ended up at the CHSLD
with menus that did not accommodate her at all, with very brusque ways of doing
things and occupational biases. People treated her like a deaf little old lady.
It was hell. It was exactly what pushed her into her decision.
She thought about going to Switzerland, but she did not have
enough energy to make the trip. In considering all these factors, what solutions
did she have, without our being incriminated? She would have to die of hunger.
She wanted to make her own decision and be the master of her own death. The only
way to do that was to deprive herself of food and water.
Dr. Painvin: May I say something, as a physician? People
who try to die by stopping to eat, it takes three weeks; stopping to drink takes
a few days. The word “incurable” in Bill C-14, if this word is not removed, we
are going to see Canadians still doing that. This is just totally unacceptable.
Senator Joyal: Ms. Simard, at what point did you contact a
doctor to request medical assistance in dying which, in your opinion, should
have been available in the circumstances?
Ms. Simard: Her family doctor, the treating physician, was
made aware. She was very open. We were very pleased to have this relationship
with her. She was certain that my mother was eligible under the Quebec
legislation. After speaking to two or three colleagues, she realized that the
end-of-life criteria came first and that, if it was not met, it was absolutely
impossible to help the person in that process. We were disappointed because for
at least three weeks, we thought that Quebec could help us, given that her
family doctor had encouraged us to do it. In the end, it did not work out.
We started looking into going to Switzerland, but her energy
dropped and her condition worsened, so we gave up on that. When she entered the
CHSLD, she had a new treating physician. We spoke to him and asked him
questions. The dialogue was very open. We spoke about her desire to die, to
leave her body, to end her suffering. The doctor heard her very well, but he did
not know what to do. Once again, he contacted two or three colleagues at the
Pierre-Boucher hospital, next to the CHSLD, but he remained without resources,
answers or help.
Finally, he let us go home. We then asked to bring my mother home
so that she could go through with her plan to stop eating, because she could no
longer tolerate being in the care centre. No physician, no help, no health
professional had any solution for us. They just wanted to improve her quality of
When you are suffering like her, when you no longer get any
pleasure from life, having an ergonomic cushion on your wheelchair changes
absolutely nothing. Having an occupational therapist come to make you do
exercises for your shoulder or neck pain, pain that gives you a headache
24 hours a day, no longer serves any purpose. Their suggestion is to improve the
quality of life. But there is no quality of life left, so there is nothing to
When a lucid and conscious person asks to be released from her
body and, when, after examinations and studies by professionals, it is
understood that the person is not in a depressive state, that it is not about
suicide, it is about assistance in dying and being free of her body, the case
must be evaluated in that light.
Senator Joyal: She died from hunger and thirst?
Ms. Simard: Yes.
Senator Joyal: Or, considering her condition, did the
doctor just —
Ms. Simard: No, he let us go home. We left the care centre
and we put her in a room in my sister’s house. My sister and I were at her
bedside in a little room for four days as she carried out her plan to stop
eating in order to end it all. People in those situations are just waiting, they
are dependent on everyone and they can decide nothing for themselves. They have
no energy left, they have no mobility left, they have nothing left. They are
dependent on everyone around them.
We could not even ask our mother to give us two or three days to
find a solution because she needed to get out of there immediately in order to
start her plan. She had reached her point of no return, it was over for her, and
we could not convince her otherwise. We did not want to convince her otherwise,
because we agreed that she was suffering too much for her to go on living.
Senator Plett: Mr. Painvin, in response to Senator White's
question, you referred to the Netherlands and Belgium, and I have something I
want to read from testimony that we have heard:
If what occurred in the Netherlands and Belgium were to be
normalized in Canada, the figures that we could expect, taking the same figures
as those in the country, would be approximately 9,000 deaths a year.
In the Netherlands, the term “psychological suffering” enabled a
healthy 63-year-old man to die by euthanasia because he could not face the
prospect of retirement. The clinic's evaluating psychiatrist said the man:
. . . managed to convince me that it was impossible for him
to go on. He was all alone in the world. He’d never had a partner. He did have
family but he was not in touch with them. It was almost like he’d never
developed as a person. He felt like he didn't have the right to live. His self-hatred
was all consuming.
He didn't have any physical problems, just psychological.
Another individual meeting the psychological suffering in Belgium,
who was offered assisted suicide, was a 54-year-old woman with a pathological
fear of germs.
Do you consider Belgium a success regarding the legislation that
Dr. Painvin: No, senator, I don't. That's why the
safeguard has to be extremely precise. In the examples you are giving, I would
say that that is a lack of professional assessment of the patient by the
Senator Plett: You support lowering the age — you call
them mature minors; I call them children — bringing the age down, again, as in
Belgium. I think you said 12 years of age, maybe 11. I'm not sure. Did you say
Dr. Painvin: Yes.
Senator Plett: Part of the preamble says that the
government is considering just mental illness as a sole underlying medical
condition. So mental illness as a sole underlying condition and then add 11-year
old and 12-year-old children; we would have had 15 deaths in Attawapiskat a few
months ago if that was the case here.
How can simply mental illness and then children be a determining
factor? If, at least, it were a medical illness, but mental illness and then
children? I can't square that box.
Dr. Painvin: Senator, as far as minors are concerned, they
would have to go through a very professional psychological and psychiatric
evaluation by an expert, a pediatrician in this field. I'm not talking here
about people who are depressed. This is very different.
When I mentioned 12 years old in Belgium, I'm not saying that we
should adopt this number. This is just an example.
Senator Plett: I hope if we have the cards that you
suggested, I can have a card that says, “Please don't kill me if I have an
Dr. Painvin: Yes, sir.
The Chair: Ms. Birrell, we have a minute if you or Mr.
Gunn wanted to respond to that comment.
Ms. Birrell: I think that we are putting more blocks in
our way to help assisted dying. Advance care directives can be done by the
individual deciding when they would like to go, and that gets documented. It is
then triggered when the person wants it. So I'm talking about planning it.
I was involved in the representation agreement in British
Columbia. I was part of the group that drafted the law. What happens, in that
case, is individuals go to a public notary or a lawyer with one or two
representatives and draw up a —
The Chair: Sorry, Ms. Birrell. I offered you the
opportunity, but I can't let you go on. And you are not responding to the
question. In any event, maybe we'll get back to you.
Senator Cowan: Thank you for your presentation.
Doctor, I have a question for you. We all recognize how difficult
these issues are to discuss, even without the kind of personal experiences
Ms. Simard has experienced. There is a lot of talk about the deadline of June 6
and how we have to get it done; even if it isn't absolutely right, it's better
to get this bill than no bill at all. Do you have an opinion on that?
Recognizing that we do have the guidance of the Supreme Court of Canada in
Carter, is this bill better than no bill at all, or should we take the time
to get it right?
Dr. Painvin: That's a very difficult question, senator.
Since the beginning, we are going in the right direction, but Bill C-14 is not
compliant with the direction of the Supreme Court. If we have a new law in June,
July, because of the wording, because of the restriction of the law, because of
the discrimination of the law, it will be challenged in court immediately.
So is it good? Is it bad? It's both. It's positive for the
country to have a law on medically assisted death, but I believe we should have
a good one. I mean, we have enough examples around the world, and we have smart
people in this country to build and create a law that will be non-discriminatory
and that will be compliant with the decision of the Supreme Court and compliant
with the Charter. Right now, Bill C-14 does not follow the rules of the Supreme
Court and the Charter.
Is it good? Is it bad? It's both.
Senator McIntyre: Thanks to all four of you for your
presentations. Ms. Simard, that is indeed a sad story you shared. I offer you my
sincerest condolences for the loss of your mother.
Ms. Birrell, I understand the difficulties people with
disabilities face when dealing with physicians. Along those lines, are you aware
of any legislation that exists concerning a person with a speech/language
disability or communications disability?
Ms. Birrell: I think that a system has to be there if you
have communication difficulty. I mean part of your disability; I don't mean
deteriorating. Have that in advance so that it's very clear what the person
wants. That's number one.
What was the second part of your question?
Senator McIntyre: Is there any legislation in place
supporting people with a speech/language disability or communications disability
when those people are dealing with physicians or doctors?
Ms. Birrell: No. There are no specific criteria or
legislation. It is a case of the advocacy groups trying to get those systems in
place. I think it’s really important that they be there.
Senator Batters: Dr. Painvin, regarding physician-assisted
suicide, this is still a rarity worldwide. I think I heard the number the other
day that only nine jurisdictions worldwide allow physician-assisted suicide, and
that includes a few jurisdictions like U.S. states where terminal illness and
end of life is required; correct? Is it nine jurisdictions worldwide that allow
physician-assisted suicide currently?
Dr. Painvin: There are the states of Oregon, Washington
Senator Batters: All of those require terminal illness and
end of life.
Dr. Painvin: Yes.
Senator Batters: It is my understanding there are only six
other jurisdictions in the world that allow this.
Dr. Painvin: Yes, but they don't use the word “incurable.”
Senator Batters: Yes, but it is the concept. It's not like
we're the last ones to get on board with this in the world. It's quite a rarity
Dr. Painvin: Right.
Senator Batters: Dealing with the issue of mature minors,
at one point in your testimony, you referred to a 12-year-old as being very
mature and a 14-year-old being very smart. You've talked about Belgium and the
Netherlands as allowing physician-assisted suicide for those who are 12 years
old. In our situation in Canada with this proposed bill, we're not talking about
a 17-year-old with terminal cancer in the last few months of his life, because
this bill does not currently require terminal illness and end of life. So I'm
wondering if you think that terminal illness and end of life should be required
for those under 18.
Dr. Painvin: I will say yes, but the problem, again, is
how you define “terminal disease.” Terminal can be a few weeks; it can be a few
Senator Batters: Okay. Thank you.
Dr. Painvin: But to answer your question, the answer is
Senator Batters: Also, you made a comment at one point,
referring to the Liberal government now allowing a free vote for their members
of Parliament on this particular bill. You seem to refer to that in a way that
indicated you were not in favour of them allowing their members of Parliament to
have a free vote. Is that correct, or did I mischaracterize what you thought
Dr. Painvin: I wouldn't want to speak my personal opinion
about that. My understanding is it will be a free vote.
Senator Batters: You made a comment, but you made it sound
like you didn't think they should have a free vote on it. Is that your personal
Dr. Painvin: No. But I think that if there is a free vote,
there is always a risk, especially on those issues, and the more restrictive the
bill is, the more likelihood it will pass; the more open the bill, the more
likely a problem will be raised. That's my point.
Senator Batters: But do you think that members of
Parliament should have a free vote on an issue so fundamental to conscience as
life and death?
Dr. Painvin: Absolutely. Personally, yes, but this is not
necessarily the position of DWD. This is my personal opinion.
Senator Batters: So Dying With Dignity Canada doesn't
think they should have a free vote?
Dr. Painvin: No, this is my own opinion.
Senator Batters: But you're also here representing Dying
With Dignity Canada. Do they think that MPs should have a free vote or not?
Dr. Painvin: Yes.
Senator Batters: They do think that. Okay. Thank you.
Senator Boisvenu: Ms. Simard, thank you so much for
sharing with us your very painful experience of losing your mother. People who
come to see us often wonder how a “committee of the wise” such as ours can deal
with testimony such as yours. Speaking for myself, and for a number of my
colleagues, I am very sensitive to the fact that this bill addresses the dying
first and foremost; it does not address the loved ones, the victims, those
suffering from illnesses that are incurable, but not necessarily terminal in the
Rest assured that your message was heard loud and clear, that we
are very sensitive to the issue, and that we have gained a lot from listening to
you. You can leave with some peace of mind; we have heard you, and I am sure
that we will consider your testimony in our discussion. We hope that our
discussion will be primarily focused on your needs, as much as possible. Thank
you very much.
Ms. Simard: Thank you.
Senator Pratte: Ms. Simard, thank you for appearing before
us today. I would like to ask you a question, but if you think it’s too personal,
do not let it cause you discomfort. I was intrigued by the fact that you
described your mother as being very spiritual.
When I was young, we had religion classes. The religion that we
were taught, and several other religions, considered that the idea of taking
one’s life, of suicide, was quite wrong, and the idea of suffering was well
regarded. I do not know what your mother’s religion or spiritual path was, but
how did she reconcile her spirituality with the idea of dying?
Ms. Simard: That is a good question. Perhaps I could
answer by saying that she believed in something greater than her. She was not
self-centred or selfish. She believed that at some point our mission on earth
might indeed come to an end, especially when our body is making us suffer and is
telling us that it is over.
I think her spirituality actually made her see that perhaps it
was time for her to put an end to it all. She was not afraid to die; on the
contrary, she saw death as salvation. For her, dying meant the suffering would
end. I think death scares many of us, but it did not scare her.
So that bolstered her arguments; in other words, when you are
dealing with a woman who is absolutely not afraid to die, who has put her
affairs in order, whose entire family is aware of her decision, and whose entire
family supports her, it is that much more difficult to accept that there was no
solution for her other than to starve herself to death.
The Chair: Witnesses, thank you all for being with us
today and for contributing to our consideration of this important legislation.
We very much appreciate it.