Proceedings of the Subcommittee to
Update "Of Life and Death"
Issue 1 - Evidence
OTTAWA, Tuesday, November 30, 1999
The Subcommittee to Update "Of Life and Death" of the Standing Senate Committee on Social Affairs, Science and Technology met this day at 11:00 a.m. to organize the activities of the committee.
Ms Heather Lank, Clerk of the Committee: Honourable senators, we have a quorum. As clerk of your subcommittee, it is my duty to preside over the election of the chair. I am ready to receive motions.
[English]
Senator Kirby: I move that Senator Carstairs be the Chair.
Ms Lank: Are there any other motions? There being none, is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms Lank: The motion is carried. I invite Senator Carstairs to take the chair.
Senator Sharon Carstairs (Chairman) in the Chair.
The Chairman: Honourable senators, thank you for bestowing upon me the chairmanship of this committee.
You have some documentation in front of you. You have a copy of the report "Of Life and Death". You also have a background note to update "Of Life and Death" prepared by Mollie Dunsmuir. Those of you who were on the committee with me will remember that she was our researcher at that time. She has maintained her interest in this file and did an update in 1998. I asked her to do a further update this year. This is literally hot off the press, dated November 25, 1999. The background information will update you on a number of situations that have occurred since the report was originally prepared. You also have in front of you a budget for the fiscal year ending March 31, 2000 and another one for the fiscal year ending June 6, 2000.
Let us begin with a number of motions we need to put into place in order to ensure that the subcommittee functions properly.
Senator Beaudoin, are you prepared to be the deputy chair of this committee?
Senator Beaudoin: If it is necessary.
Senator Kirby: I move that motion.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Pépin: I move
That the Subcommittee print 300 copies of its Proceedings and that the Chair be authorized to adjust this number to meet demand.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Senator Pépin: I move:
That, pursuant to Rule 89, the Chair be authorized to hold meetings, to receive and authorize the printing of the evidence when a quorum is not present, provided that a representative of the government and a representative from the opposition are present.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: I would entertain the following motion:
That the Subcommittee ask the Library of Parliament to assign research officers to the Subcommittee and that the Chair, on behalf of the Subcommittee, direct the research staff in preparation of studies, analyses, summaries and draft reports.
Senator Kirby: I so move.
Senator Corbin: I am not a member of the subcommittee, but you have invited me to attend. You are going fairly fast on this.
The Chairman: These are all normal motions.
Senator Corbin: I do not accept anything as normal anymore. Would you repeat the text of that motion?
The Chairman: The motion reads:
That the Subcommittee ask the Library of Parliament to assign research officers to the Subcommittee and that the Chair, on behalf of the Subcommittee, direct the research staff in the preparation of studies, analyses, summaries and draft reports.
Senator Beaudoin: I do not have any problem with the first part of that. I have a problem with the second part because this is a committee, not a one-person committee.
The Chairman: Remember that the chair can act only on behalf of the subcommittee.
Senator Kirby: The researcher needs someone to report to, and they report to the chair. The chair can direct the research staff only on behalf of the subcommittee.
Senator Beaudoin: Once the subcommittee has made a decision.
The Chairman: Exactly.
Senator Corbin: That is to be interpreted along the lines suggested by the subcommittee.
The Chairman: Exactly.
Senator Corbin: In other words, you cannot take a totally different approach from the committee members or diverge considerably from the consensus developed.
The Chairman: Absolutely. It must be on behalf of the subcommittee. Is it your pleasure to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried. Would someone move:
That, pursuant to section 32 of the Financial Administration Act, authority to commit funds be conferred on the Chair or, in the Chair's absence, the Deputy Chair; and
That, pursuant to section 34 of the Financial Administration Act, and guideline 3:05 of Appendix II of the Rules of the Senate, authority for certifying accounts payable by the Subcommittee be conferred individually on the Chair, the Deputy Chair and the Clerk of the Subcommittee.
Senator Kirby: I so move.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried. I will now entertain the following motion:
That, pursuant to the Senate guidelines for witnesses' expenses, the Subcommittee reimburse reasonable travelling and living expenses for one witness from any one organization and payment will take place upon application, but that the Chair be authorized to approve expenses for a second witness should there be exceptional circumstances.
That is the rule we used in the Standing Senate Committee on Legal and Constitutional Affairs. However, if there were exceptional circumstances, for example, if a handicapped person needed an assistant in order to come and appear before us, we would also pay for that person.
Senator Corbin: Is it your intention to call many outside witnesses?
The Chairman: That will be up to the committee, but I hope that we can make some determination today of the kinds of witnesses from whom we would want to hear.
Senator Beaudoin: I have a problem here in that I have so many committees to attend that I do not have the time to travel. If the witnesses are coming here, I agree. However, if we must travel to them, then I have a problem.
The Chairman: Senator Beaudoin, you will see from your budget that there is no travelling at all. All meetings will take place here.
Senator Beaudoin: The best example is given by the Standing Senate Committee on Legal and Constitutional Affairs, which is a very good committee and does not cost anything.
The Chairman: This is the travelling and living expenses of witnesses, not the travelling and living expenses of senators.
Senator Beaudoin: That is fine. I so move.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
With regard to the time slot for regular meetings of this subcommittee, the Social Affairs Committee meets at 3:30 p.m. on Wednesdays and at 11:30 a.m. on Thursdays. That provides some conflict for you because of the Standing Senate Committee on Legal and Constitutional Affairs. I suggest that we limit the number of meetings we have to begin with, but that we try to set Monday afternoons with plenty of advance warning -- that is, if that is agreeable to people.
Senator Beaudoin: Monday afternoons?
Senator Kirby: I do not like Monday afternoons. That messes up the one day of the week that I do not have to be here. What about Tuesday mornings?
Senator Beaudoin: Wednesday and Thursday are impossible. Tuesday afternoon is impossible. What is wrong with Monday afternoon?
Senator Kirby: I do not like to be in town if I do not have to be here.
Senator Carstairs: What about Tuesday morning from 8:30 to 10:30?
Senator Kirby: That is no problem for me.
The Chairman: That is very difficult for Senator Keon because that is when he normally does his surgery.
Senator Kirby: Since we will not have many meetings, perhaps we should canvass people to figure out a time that works rather than prescribe a time because, in any given week, schedules can change.
Senator Beaudoin: If we do not have many meetings, I will accept Tuesday morning. Tuesday is a terrible day for me. From 12:00 p.m. to 6:00 p.m. is full.
Senator Pépin: It is the same thing for me, but the only time I have is Tuesday morning. The rest of the week is full.
Senator Beaudoin: Let us accept that, then.
Senator Corbin: You have agreed to operate without the full committee present. Your main task is to collect information. Therefore, if some people cannot show up on a particular day or morning or afternoon the committee will still be functional and I think it should proceed so as not to drag this thing out forever.
The Chairman: Let us decide on 8:30 a.m. to 10:30 a.m. Tuesdays.
Senator Beaudoin: I cannot accept that time because I am on the other side of the river. We have a bridge to cross and it is extremely difficult to do so at that time of the morning; however, 9:00 a.m. is acceptable.
The Chairman: We will meet from 9:00 a.m. to 11:00 a.m., then.
Honourable senators, I have submitted two budgets to you. I should like to pass the first one today so that we can then go to the Standing Committee on Internal Economy, Budgets and Administration. I wanted you to see the full study. As you can see, the costs are very modest. The budget for March 31, 2000, is for $7,890 and from June 6, 2000, is for $3,100. I suspect that we will not spend that kind of money on meals if we are meeting from 9:00 a.m. to 11:00 a.m. in the morning.
Senator Kirby: Those two budgets are so reasonable, I am happy to move a motion to accept both. We are talking about only $11,000.
The Chairman: Is it your pleasure, honourable senators to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Now, let us get to the most important part of the meeting, namely, the work plan, which is in front of you. The terms of reference have been approved by the Senate. Let us make it very clear among honourable senators here that this committee has no intention of reviewing the decisions that were made on euthanasia and assisted suicide. We will not look at those recommendations. We will focus our review here on the unanimous recommendations of the committee -- that is, the unanimous recommendations on the withholding and withdrawing of life-support treatment, on palliative care, on advance directives, on sedation practices, and on anything that was a unanimous recommendation in the report. We will be asking for an update.
Senator Corbin asked about the kinds of witnesses we will have. I should like you to give authority to the staff to set up for us, early in February, a series of witnesses on the state of palliative care in Canada so that we can hear if in the last five years more service has been available to patients across the country. I want to find out if any better medical training is going on now. We learned that there was little or no training in pain control and sedation practices at the universities. I should like to be able to contact some of those earlier witnesses, like Dr. MacDonald from Montreal, and find out what they know today about what is happening in our medical schools with respect to the training of physicians.
Senator Beaudoin: I am glad to see how it will work because I have always said that we should implement all of our unanimous decisions as soon as possible. I have agreed with that since the beginning. I am ready to participate in that work. How long will this subcommittee take? Will it take one or two years?
The Chairman: The date of filing our report is June 6.
Senator Beaudoin: As early as June?
The Chairman: That will be the five-year anniversary.
Senator Beaudoin: Are we to study all of our unanimous decisions?
The Chairman: That is right.
Senator Beaudoin: I have no problem with that.
The Chairman: I do not want to rehash the report. We did a thorough job.
Senator Beaudoin: We should at least start with the unanimous part.
Senator Corbin: You said earlier that we are now putting things on the table and yet, in the transportation and communications budget, you have three items concerning video conferences. You have Australia, the Netherlands and Oregon. Why are the Netherlands and Oregon on there if we are to deal with the unanimous recommendations? Those are controversial aspects.
The Chairman: The first of the terms of reference for the committee, which were approved by the Senate, was the progress on the implementation of the unanimous recommendations made in the report. That was the first thing I addressed. The second term of reference involves the developments in Canada respecting the issues dealt with in the report. That specifically deals with areas such as advanced directives. More provinces have passed advance directive legislation. The other thing I should like today would be approval for staff to write to the provinces so that we can have an update from them on the status of that kind of information. The third reference involves developments in foreign jurisdictions respecting the issues dealt with in the report.
This is without judgment, Senator Corbin. This document is now being used in medical schools across the country. Senator Kinsella indicated that he is using it. However, some of the information about what is going on in foreign jurisdictions is no longer accurate. I do not think we need to have particular witnesses on this. Ms Dunsmuir has already covered it -- that is, if you get a chance to read her report with respect, for example, to the northern territory of Australia. We have included Oregon, the Netherlands and Australia in our budget so that if we are not satisfied with the information that the researchers have been able to obtain with respect to what is happening in those places, we will have the leeway to conduct a video conference with them in order to have further information that we can add to the report. However, I want to make it clear that addressing what is happening in foreign jurisdictions would not be for the purpose of reviewing the recommendations; it would be only to update the information.
Senator Beaudoin: Another aspect also strikes me. This is partly provincial jurisdiction. When we studied this in 1994-95, we were very prudent not to invade the provincial field. We will continue in the same manner, but nothing precludes us from giving our conclusions and our suggestions. However, we must take into account that part of it deals with health and part of that is regulated provincially. We never invaded the provincial field, and I hope that will continue.
The Chairman: Absolutely. I should like two motions. The first would be:
That staff be directed to write to the provinces about updating information in those provinces with respect to the unanimous recommendations found in the report.
Senator Kirby: I so move.
The Chairman: Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
The Chairman: Carried.
Second, I should like a motion to authorize the staff to put together a list and contact witnesses with respect to the issues in the unanimous recommendations and the progress of those unanimous recommendations -- that is, witnesses with respect to palliative care and with respect to the withholding and withdrawing of life-support treatment and those kinds of things.
Senator Corbin: I thought about witnesses well before the meeting. Why not ask the Minister of Health, Mr. Rock, to appear before this committee? It would be interesting for two reasons. He would be suspected of being one of the principal actors on our recommendations, certainly with respect to palliative care and with his conversations with the provinces and with financing. Furthermore, he was Minister of Justice and he appeared before this committee when we dealt with these controversial issues. He could probably give us the benefit of his overall views on two sides of the question.
The Chairman: There are two ministers from whom I should like hear with respect to any progress that has been made: the Minister of Health, who was the Minister of Justice when the report was prepared, and the current Minister of Justice.
Senator Kirby: As would I.
The Chairman: I should like authorization from the committee to outline for those ministers, in a detailed letter, the kinds of things we would like them to speak to us about. I would use the basis of the unanimous recommendations for those letters. There is no point in saying, "We want to you come." I should like to say, "We would like you to come to talk about the following." That is to say, I should like to be very point specific, based on the unanimous recommendations contained in the report.
Senator Beaudoin: Mr. Rock has the advantage of being not only the Minister of Health but also a good jurist.
The Chairman: Is that agreed, honourable senators?
Hon. Senators: Agreed.
The Chairman: Carried.
Do we have authority for the staff to begin to gather the list of witnesses so that we can begin in February?
Hon. Senators: Agreed.
The Chairman: Carried.
It is not my intention to call you back to a meeting before February. However, I may be in touch with you, including members of the former committee, so that you have some guidance as to where we are going.
Senator Corbin: I would appreciate that.
The Chairman: I will also give you copies of any letters that I send to ministers.
Senator Beaudoin: Have you had discussions with Senator DeWare as well?
The Chairman: Yes. She hopes to be an active participant in the committee, as do Senator Keon and Senator Lavoie-Roux -- that is, if her health improves and she returns. There will then be six of the seven members of the original committee who, hopefully, will be able to contribute.
Senator Corbin: I thought a lot about former Senator Joan Neiman, who was chair of the original committee. I have met her on rare occasions since the tabling of that report. Apparently she has received a lot of mail and comment about the report, but we are not privy to that. It was addressed to her and she has kept it for herself. I never received that kind of feedback. On the assumption that she is still active, would it be beneficial for the committee to hear from her?
The Chairman: I would be delighted to hear from Senator Neiman. I have a wonderful suggestion that we invite her to come and share with us what she has heard over the last five years.
Senator Corbin: That is just a suggestion.
The Chairman: It is a wonderful suggestion.
The committee adjourned.
OTTAWA, Monday, February 14, 2000
The Subcommittee to Update "Of Life and Death" of the Standing Senate Committee on Social Affairs, Science and Technology met this day at 2:01 p.m. to examine the developments since the tabling in June 1995 of the final report of the Special Senate Committee on Euthanasia and Assisted Suicide entitled, "Of Life and Death".
Senator Sharon Carstairs (Chairman) in the Chair.
[English]
The Chairman: Today we begin the first in a series of hearings under our mandate to update the unanimous recommendations of the 1995 Special Senate Committee report on euthanasia and assisted suicide entitled, "Of Life and Death".
I would remind honourable senators and witnesses that this committee is not reopening the debate on assisted suicide and euthanasia, it is dealing strictly with the areas of the report where the original committee made unanimous recommendations. I would ask that everyone bear this in mind as we proceed through the hearings.
Three witnesses were invited today to provide us with an overview of the issues at hand. Regrettably, Professor Keyserlingk, who was to join us from the Biomedical Ethics Unit, Faculty of Medicine at McGill University, is snowbound in Montreal and cannot be with us. Both witnesses who are here are well known to members of the committee. Professor Jocelyn Downie worked with us for many months on the original report. Professor Barney Sneiderman is also here.
Professor Jocelyn Downie, Health Law Institute, Dalhousie University: Thank you, honourable senators, for the invitation to participate this afternoon. I applaud you for undertaking the task of updating the Senate report which was completed five years ago.
I was asked to provide an overview of the progress made over the past five years with respect to the unanimous recommendations made by the Special Senate Committee on Euthanasia and Assisted Suicide in "Of Life and Death." Given the time constraints, I have set myself two limited tasks: first, to update the legal status sections of "Of Life and Death" by reporting on any changes to the legal status and any significant legal events or developments for each of the categories of assisted death; second, to report on the status of unanimous legal recommendations made in "Of Life and Death".
I will first look at pain control and sedation practices and changes in the legal status. Quite simply, there have not been any. There have been a few significant legal events or developments. In 1996, Senator Carstairs introduced a bill to clarify the law with respect to withholding pain control and sedation practices. This bill died when the last federal election was called.
Then Senator Lavoie-Roux introduced a bill with similar intention. It died with the first session of the 36th Parliament.
In 1999, Senator Carstairs introduced another bill, again designed to clarify the law with respect to pain control and sedation practices. We are waiting quite eagerly to see what will happen with that bill.
As to the status of the unanimous legal recommendations with respect to pain control and sedation practices, they simply have not been acted upon. The Criminal Code has not been amended to clarify the practice of providing treatment for the purpose of alleviating suffering that may shorten life.
Turning now to changes in the legal status, there has been none at the federal level. Provincially, though, we have seen some movement. For instance, the Ontario Health Care Consent Act of 1996 now provides for a clear, statutorily protected right to refuse potentially life-sustaining treatment.
There have also been some significant developments or events on which one might comment. Again we refer back to Senator Carstairs' 1996 bill which was designed to clarify the law with respect to withholding and withdrawal of life-sustaining treatment, followed by Senator Lavoie-Roux's bill, again with similar intentions, and now the 1999 bill. Those three bills all deal with pain control and sedation practices and withholding or withdrawal of life-sustaining treatment.
Let me take you from the general, with respect to withholding and withdrawal, to some specific categories of people and developments with respect to those categories of people in the arena of withholding and withdrawal. The Supreme Court of Canada considered the common-law status of refusals of treatment for immature minors in the case of Sheena B. While it was not so clear when the Senate committee delivered "Of Life and Death", it is now clear that, where withholding and withdrawal of potentially life-sustaining treatment is in the child's best interests, the parents have the authority to refuse the treatment and their refusal must be respected. However, where the treatment is in the child's best interests, then the parental refusal will be overridden by the state.
The second group of individuals of concern is mature minors. Since the Senate report on euthanasia and assisted suicide, there has been some legislative and common-law activity in the arena of mature minors. However, there is still little clear guidance to be found in most provincial legislation or in the common-law. In particular, it is not yet clear whether minors who understand the nature and the consequences of the decision to be made should have their decisions respected, full stop, or should only have their decisions respected when what they are seeking to do or not do is actually considered to be in their best interests by a third party -- the health care professional or the court.
The third group within "withholding and withdrawal" is those who would seek to perform unilateral withholding or withdrawal of life-sustaining treatment. This takes us into the futility debate. In the past few years, two cases have arisen which raise the question of what should happen when surrogate decision makers want treatment and the health care team believes that the treatment would not be in the incompetent person's best interests. It is a flip of the usual withholding/withdrawal situation. I believe Barney will be discussing these cases in details, so I will not review them here. The factual details are in the written brief which I will be supplying to the committee.
For the purposes of the review today, to set the stage for you, it is sufficient to note that there have been two highly published and controversial cases in this area. There has also been a great deal of discussion of the issue of unilateral withholding and withdrawal of the potentially life-sustaining treatment. Thus, this issue, which was merely lurking in the background in 1995, has come to the fore now and is in need of attention.
That takes us to the status of the legal recommendations with respect to withholding and withdrawal. The Criminal Code has not been amended. Necessary legislation has not been enacted in order to explicitly recognize and clarify the circumstances in which the withholding/withdrawal of life-sustaining treatment is legally acceptable.
Regarding advance directives, since releasing "Of Life and Death", several provinces have moved to introduce advance directives legislation. Seven provinces and one territory have now passed and proclaimed legislation; two provinces have passed but not yet proclaimed their legislation, despite the fact that one piece of legislation dates back to 1993; and one province and two territories still have no legislation at all with respect to advance directives.
There have been no significant legal events or developments with respect to advance directives, so you could say that the legal recommendations are "partially done" and they are "not done." They are "partially done" in that some but not all provinces and territories that did not have advance directives legislation have adopted such legislation, as recommended by the committee. However, the provinces and territories have not collectively established a protocol to recognize advance directives constructed in one province or territory which require to be utilized in another province or territory.
I would turn now to assisted suicide. There have been no changes in the legal status of assisted suicide in Canada. There have, however, been several cases of note. In October of 1995, Mary Fogarty was convicted of assisting in the suicide of a friend. The Crown alleged, and the jury agreed, that Mary Fogarty provided Brenda Barnes, a diabetic, with syringes and insulin and wrote Barnes' suicide note for her. Fogarty was convicted and sentenced to three years probation and 300 hours of community service. Thus, she became the first person convicted and the first person in over 30 years to have been charged under section 241(b) of the Criminal Code. In June 1996, Dr. Maurice Genereux was charged under 241(b) of the Criminal Code for assisting with the suicide of a patient. In May 1997, additional charges were laid and he ultimately faced charges that included aiding or abetting suicide and counselling to commit suicide, as well as the straightforward assisted suicide. Dr. Genereux was accused of prescribing drugs to two patients who were HIV positive. One ultimately committed suicide; the other attempted suicide. This was the first time a physician had been charged with that crime in Canada. In December 1997, he pled guilty and became the first physician convicted under this provision of the Criminal Code. More recently, Burt Doerksen is scheduled to stand trial in August of 2000 on a charge of assisted suicide. It is alleged that he helped his 78-year-old wife to commit suicide by carbon monoxide in the family garage.
I will now turn to the status of legal recommendations. They are done insofar as a laissez faire interpretation of "done". No amendments have been made to the offence of counselling suicide under section 241(a) or (b), and section 241(b) remains intact. The recommendation was to leave things as they were, and that has been followed: they have been left as they were.
Finally, I wish to focus on euthanasia. You may ask: What about changes in the legal status? Again, there are none. There is a pattern in this presentation. What about significant legal events and developments? Again, we have had several cases of particular note. In 1993, Robert Latimer was charged with first-degree murder in the death of his daughter. He placed his severely disable daughter in the cab of his truck and, with the purpose of alleviating what he believed to be her otherwise unrelievable suffering, he asphyxiated her with carbon monoxide. Mr. Latimer was convicted of second-degree murder and was sentenced to the mandatory minimum life sentence with no possibility of patrol for 10 years. After he successfully appealed his conviction to the Supreme Court of Canada, that court ordered a new trial on the grounds that the prosecution tampered with the jury by asking RCMP officers to question prospective jurors about their ethical and religious views on euthanasia and abortion.
Mr. Latimer was tried again on a charge of second-degree murder and convicted. Despite the mandatory life sentence with no possibility of parole for 10 years, he was actually sentenced to two years less a day, with one year to be spent in prison and one year under house arrest. This extraordinary sentence was possible because the trial judge granted Latimer a constitutional exemption from the mandatory minimum sentence on the grounds that such punishment would be contrary to the Charter as it would constitute cruel and unusual punishment and thus breach Latimer's section 12 rights. The Court of Appeal dismissed Mr. Latimer's appeal, allowed the Crown's appeal and imposed a mandatory minimum sentence. This case is now on appeal and should be heard by the Supreme Court of Canada any time now. I tried to find a date but could not do so. However, it was expected to be heard some time ago. We expect that to happen within the next six months.
Another case that will be familiar to you is that of Dr. Nancy Morrison. In 1997, she was charged with first-degree murder following the death of Paul Mills, a 65-year-old man with cancer of the esophagus. After numerous interventions, including many surgeries, it was determined that nothing more could be done for him. With the consent of the patient's family, all potentially life-sustaining treatment was stopped. Mr. Mills was extubated. Unfortunately, none of the drugs administered appeared to alleviate his suffering. He seemed to be in considerable pain and was gasping for breath. It was alleged that, in response to this situation of unrelievable suffering, Dr. Morrison gave Paul Mills a lethal injection of potassium chloride. Dr. Morrison was released on bail and she returned to a limited practice.
At the end of the preliminary hearing, Judge Randall Hughes concluded that a jury properly instructed could not convict the accused of the offence charged, any included offence, or any other offence and he discharged Dr. Morrison. The Crown sought an order of certiorari to quash Judge Randall's decision. However, because this was a review of a decision at a preliminary inquiry rather than a true appeal, the standard of review was excess of jurisdiction rather than error of law. Thus, while Justice Hamilton actually found that Judge Hughes had made an error of law, she also found that the error was within his jurisdiction to make and, therefore, it was not within her powers to grant the application. The Crown decided not to appeal Justice Hamilton's decision and this case was therefore closed with respect to criminal proceedings. The college of physicians and surgeons then investigated the matter and they chose to proceed by way of a letter of reprimand. In March 1999, Dr. Morrison signed the letter, thereby admitting the lethal injection of potassium chloride. This letter will remain in her file, but will not prevent her from practising in any way. Thus, the case was closed.
You may ask: What is the status of the legal recommendations made by the original Senate committee? Again, they were done insofar as the Senate committee did not call for anything to be done in particular. Nonvoluntary euthanasia remains a criminal offence; voluntary euthanasia remains a criminal offence; and involuntary euthanasia continues to be an offence under the present murder provisions in the Criminal Code.
However, the recommendations were "not done" insofar as a call being made to change the sentencing provisions of the Criminal Code to provide for a less severe penalty in cases of nonvoluntary euthanasia where there is the essential element of compassion or mercy. Similarly, the Criminal Code has not been amended to allow for a less severe penalty in cases of voluntary euthanasia where there is the essential element of compassion or mercy.
In conclusion, in 1995 the legal status of assisted death in Canada was found to be unclear and indefensible. It remains so today. As the Standing Senate Committee on Euthanasia and Assisted Suicide recognized in "Of Life and Death", both clarification and law reform are needed.
Let us consider, first, the need for clarification. The absence of a clear legislative or judicial statement on the withholding and withdrawal of potentially life-sustaining treatment and the provision of potentially life-shortening palliative treatment identified by the Senate committee remains, and it continues to cause at least six different harms.
First, under the current system, some people are receiving unwanted treatment because their health care providers do not know whether they will be violating the Criminal Code if they do not do everything within their power to sustain life.
Second, patients across the country and even across cities and within institutions are getting significantly different treatment or non-treatment, whether it be the removal of a respirator, provision of massive amounts of morphine or provision of potassium chloride. What they get or do not get depends on the results of the lottery regarding which health care institution they go to or which health care providers they are assigned. Since there is confusion about what the law is, some health care providers will not respect any refusals of potentially life-sustaining treatment. Some will respect refusals of artificial ventilation but not artificial hydration and nutrition; others will respect refusals of any kind of treatment. Some health care providers will respect refusals from competent adults but not from surrogate decision makers. Others will respect refusals from anyone, whether it is the competent adult or an appropriate surrogate. Some health care providers will respect refusals from terminally ill patients but not for patients for whom the prognosis is excellent with the treatment.
Third, some people are not receiving adequate pain control because health care providers do not know whether it is illegal to provide analgesics in doses or ways that will shorten life.
Fourth, health care providers are operating under the shadow of the threat of legal liability. It is easy for me to sit in my office, take a call and say, "No the withholding and withdrawal of life-sustaining treatment is perfectly legal in Canada. The provision of potentially life-shortening treatment is absolutely legal in Canada." I am not at risk of a charge. Even if someone is not at risk of a conviction, realistically they are still at risk or certainly experience being at risk of a charge, and that is a very serious problem. It harms the health care providers because it adds a lot of stress to their lives, and it harms patients because it compromises the care that is provided.
Fifth, the law is being made on the backs of vulnerable individuals. It is being made on the backs of individuals who have the resources -- financial, emotional and physical -- to go to court and challenge the system, but those are not the most powerful people in the system. Consider, for example, the burden born by Nancy B. Paralyzed and suffering from Guillain-Barré syndrome, Nancy B. wanted her respirator removed. She had to go to court and, with her family, endure public debate about her right to refuse life-sustaining treatment. She ultimately won the case and, in doing so, helped to established the right to refuse treatment in Canada. However, she paid a significant personal price. I think leadership should be demonstrated by those with greater resources of all sorts, including legislators, health care professional organizations, and healthy individuals.
The sixth problem is that law is being made on a case-by-case system by the courts, with all of the limits attendant on such a method of making law. The courts are best situated to resolve legal rather than moral issues, whereas the legislators are charged with resolving both morale and legal matters. Furthermore, the courts are constrained by the facts of the case and the abilities and positions of the parties before them, while the legislators, on the other hand, can canvass far more widely and develop general rules.
In 1995, clarification of the legal status of assisted death was needed to stop these harms. It remains needed in 2000.
Consider now the need for reform. First, as has been increasingly clear since 1995, instances of assisted suicide and euthanasia are being treated in an inconsistent fashion. There is a clear lack of a standard response across the country to cases involving assisted suicide and euthanasia. Health care providers in Ontario and Nova Scotia might perform exactly the same acts and yet be tried for murder in Nova Scotia, and be allowed to plead guilty to the administration of a noxious substance in Ontario. This seems manifestly unfair. Law reform was and continues to be necessary to resolve the inconsistent application of the law.
Second, there was and continues to be inconsistency as between the Criminal Code and the administration of justice. Euthanasia is clearly murder, according to the Criminal Code, and yet it is being treated as a lesser crime across the country. Either euthanasia deserves a punishment less than, at least, 25 years in jail, in which case, as was recommended by the Senate committee, the Criminal Code should be amended to reflect that; or it deserves at least 25 years in jail, in which case the pattern of accepting pleas to much lesser charges should be stopped. The current approach of keeping euthanasia under the homicide provisions of the Criminal Code with the mandatory minimum life sentence attached to it, but prosecuting it under the manslaughter or administrating a noxious substance provisions is, at best, confusing and, at worst, hypocritical. Law reform was necessary in 1995, and it remains necessary in order to resolve this confusion or hypocrisy.
Third, under the current system, we continue to fail the dying, their families and friends and health care providers. For example, people are dying in excruciating pain. People are attempting suicide, failing and ending up in worse shape than before they attempted suicide. People are taking desperate steps to help their patients or loved ones and finding themselves facing the potential of imprisonment for life with no possibility of parole for 25 years. People are refusing life-sustaining treatment for fear of accepting the treatment offered, finding themselves in a situation in which they would feel that life is no longer worth living, but not then being allowed to die.
In 1995, I agreed with the Senate committee finding that the law was in need of both clarification and reform. Unfortunately, I appear before you five years later to say that the law still remains in need of clarification and reform. Therefore, I would argue that the unanimous recommendations made by the Senate committee should be reissued and that persons with the power to implement them should be called upon to do so. They owe it to all Canadians.
Professor Barney Sneiderman, Faculty of Law, University of Manitoba: After listening to Ms Downie's excellent overview, I will scrap my opening comments and instead add comments on two cases to which she referred -- the Winnipeg Doerksen case and the case involving Dr. Morrison. I will mention a number of cases that are relevant.
In 1997, the Manitoba Court of Appeal decided a case called L. and H. I will not go into the details of the case. However, should any of you wish further details, I will be glad to give those to you later. The Court of Appeal ruled that a DNR, a "do not resuscitate" order, lies within the exclusive judgement of the attending physician. The court drew a distinction between treatment and non-treatment. According to the court, the only reason that consent is required for treatment is that treatment involves the touching of the patient. The touching of the patient without consent constitutes a battery in civil law and an assault in criminal law. If what is at issue is a DNR order, in essence the patient is not being touched and therefore consent is not required from the patient or a surrogate. It is simply a medical decision.
In the case of Sawatsky v. Riverview Health Centre, a Winnipeg case, very briefly, the wife of a debilitated and incompetent 79-year-old patient in an extended care facility objected to a DNR order being placed on his chart. A Queens' Bench judge was persuaded to put the DNR order on hold so that physicians unconnected with Riverview could consider whether it was medically reasonable. The patient was examined by two outside physicians who agreed with the order, but the case did not go back to court because the patient's condition worsened and he died.
The Sawatsky case involved an insistence upon treatment which the law has yet to recognize. The question it raises is whether the law's recognition of the negative right to refuse treatment should be extended to include a positive right by patient or family to enforce a demand for treatment that the physician regards as medically unreasonable, as offering no potential benefit to the patient.
There is also the question of when treatment is medically reasonable, which of course takes us into the incredibly complex realm of medical futility. What makes the futility issue even more complex is the failure to keep it separate from the issue of the rationing of health care.
The Sawatsky case highlights the public concern with both overtreatment and undertreatment. On the one hand, there is the spectre of medical technology that prolongs the dying process to no rationale end, a spectre which explains the development of health care directives. On the other hand, there is the legitimate fear of undertreatment by our beleaguered and much maligned health care system. Much of the media coverage of the Sawatsky case protrayed it as a David and Goliath encounter -- a elderly and devoted wife single-handedly seeking to save her husband from the clutches of an impersonal medical system. For example, one front page article in The Globe and Mail was headlined "Doctors won't save man despite wife's plea." In letters to the press and comments on radio talk shows, concerned Manitobans expressed agreement with Mrs. Sawatsky when she said about her husband, "They have written him off. The older you get, the more vulnerable you become, the more expendable you get."
I am certainly not suggesting that we must always prolong patients' lives. I for one believe that the DNR order in the Sawatsky case was right. However difficult if not impossible it is to define "futility" as a matter of general policy, scores of patients die every day in Canadian hospitals because physicians and families reasonably agree that the dying process should not be prolonged simply because the medical technology is there.
Medical futility is the kind of rationale that, in a different era, could lead us into an Orwellian nightmare. I refer to medical futility in the medical context as the troublesome "F word" -- troublesome indeed.
I would like to shift gears now. When the committee's report was issued in 1995, it revealed a decided lack of consensus regarding the legalization of euthanasia and assisted suicide. However, there was an issue that produced unanimity; that being that mercy killing should be recognized as a reduced category of culpable homicide for which there would be no mandatory minimum sentence. Parliament may have heard the message, but in the nearly five years since it was delivered there is nothing to indicate an inclination to act upon it.
Sometime later this year, the Supreme Court will hear the appeal of Robert Latimer from his mandatory minimum sentence, life imprisonment with no eligibility for parole for 10 years. Disability groups have been granted intervenor status and will no doubt present impassioned arguments that the sentence be upheld. I acknowledge the anxiety and outrage that has emerged from within the disabled community at the killing of Tracey Latimer. By the "disabled community" I mean the disabled themselves and caregivers of the disabled.
I do not believe that Robert Latimer is their enemy. If he had devalued his daughter's inherent worth as a human being, then surely he would not have provided her with 12 years of loving care and devotion. From those who damn him bitterly, he gets no credit for not taking the easy way out and institutionalizing her, and no credit for all the years of incredible patience, ceaseless toil, and heartbreak that he and his wife endured for the sake of their daughter.
There is an aspect of the Latimer case which has been ignored. The 12 ordinary citizens who conscientiously fulfilled their civic duty as the jurors in his 1997 trial convicted Latimer for the killing of his disabled daughter Tracey. After all, he had no legally recognized defence and this was a conscientious jury. However, after returning their verdict, they were appalled to learn from the trial judge that the least time he could serve was 10 years.
As you know, the jury defiantly and unanimously recommended that Latimer serve but one year. The trial judge, Justice Noble, responded with a two-year sentence, but only one year in custody. As Professor Downie has informed you, that decision was overturned by the Saskatchewan Court of Appeal and the 10-year sentence instituted.
The jurors were able to take the measure of the man. They were there, they attended the trial, they heard all the evidence, and they concluded that 10 years was way out of line. Having the collective sense that this was a murder case calling for leniency, they, in effect, came to the same consensus as did this committee: that a true mercy killing is no ordinary murder. Given how distraught they were when they heard of the 10-year minimum, they presumably, but mistakenly, had assumed that the law was sufficiently enlightened to allow for a sentence reflecting the facts of the case.
If the sentence is upheld by the Supreme Court, how are they going to look back over the years at their jury experience? With bitterness and outrage, I would image.
The law puts the fate of a man in their hands but refuses to tell them what a guilty verdict can mean. In reversing Justice Noble's sentence, the Court of Appeal gave short shrift to the jury's recommendation, in effect telling the jurors, "Butt out. This is none of your business." That, after all, is the conventional wisdom. The jury's role was simply to decide guilt or innocence, and therefore the crime but not the punishment is their proper concern. That is well and good when the crime before the jury carries a wide sentencing range and no mandatory prison term, but murder is different. According to the law, the only victim in the Latimer case is Tracey Latimer. In one sense, the jurors are victims too. Juries are supposed to express the sense of the community, and when these jurors did that, when they sent a signal that the law ignored, they were left with the burden of knowing that their verdict paved the way for a punishment they believe is way out of line. What kind of message does that send to every citizen who may be called upon one day to do jury duty?
There are as well the other victims; Laura Latimer and the three Latimer children. Only days after the verdict, but before Justice Noble's remarkable sentence, three of the jurors expressed their dismay at the spectre of a 10-year sentence in a CBC interview, and two spoke about Latimer's family. One said, "He has children at home; young children that need him." Another said, "It's not going to do him any good to be in jail, nor his family. I think he would be better off being at home where he could take care of his family."
There are those who interpret Justice Noble's sentence to mean that killing the disabled is a lesser crime than killing the non-disabled, but that was not his message. As he took pains to emphasize, the evidence clearly established that Latimer ended his daughter's life because he knew no other way to end the pain that marked her life and that tore at his heart; and not because he regarded her as a lesser human being. The sentencing principle of denunciation has its place, but not in this kind of case. Those who insist that this message be sent, however misdirected it is in this case, should know that it will wreak havoc upon this family, and do not forget that it is Tracey's family to which I refer.
That family has undergone the most incredible stress since Tracey's death in 1993, and the three siblings have really known no other life other than one pervaded by the dread of losing their father. If they are not already permanently scarred victims, then surely they will be if the 10-year minimum sentence is upheld.
In my view, that sentence is so grossly disproportionate to the offence as to cry out for relief, particularly in light of less severe maximum sentences that can apply to the most horrific offenders committing the most heinous offences short of murder. When the Latimer jury called for a one-year sentence, it was, in effect, exhibiting an intuitive grasp of cruel and unusual punishment; that it is not enough that the punishment fit the crime, but that it also fit the criminal. A sizeable majority of Canadians apparently feel the same because, according to a recent Angus Reid poll, by a margin of 73 to 23 per cent, respondents supported the proposition that Latimer "acted out of compassion and should receive a more lenient sentence."
Five years later, there is absolutely no indication that Parliament is prepared to act upon the committee's mercy killing proposal. In any case, I believe it is evident that a mercy killing bill would be greeted by a public storm of protest and heated rhetoric that would make calm and reasoned discussion very difficult.
I have learned from personal experience that, if you advocate a mercy killing defence to an audience that contains members of the disabled community, you will be met with an outraged response that compares your viewpoint to the Nazi euthanasia program, as an invitation to the mass murder of the disabled by their caregivers who would, supposedly, find sympathetic jurors who would likewise devalue the lives of the disabled by all too eagerly embracing a mercy killing defence. You will hear that there is no such thing as a mercy killing; that it is nothing more than the killing of a disabled dependent to suit the convenience of the caregiver.
Of course, we keep hearing that the disabled community is against leniency for Robert Latimer. However, I have three disabled friends who feel as I do about his case. Therefore, what we are hearing is not necessarily the voice of the disabled. Why should that community speak with one voice on a issue any more than any other community would likely speak with one voice on an issue? All we know is that what we are hearing is the voice of some of those who hold themselves out as speaking for that community. Of course, I do not mean to imply that opposition to leniency for Robert Latimer comes only from the disabled community, but it is the disabled community which has produced his most vocal and impassioned critics.
Ms Downie referred to the Doerksen case, a case with which I am quite familiar. It is an assisted suicide case. If you were the defence lawyer, you could not ask for a better case. At the time of his wife's death two years ago, Bert Doerksen was 79 years old. His wife was 78 years old. She was suffering from a number of serious illnesses, including intractable pain, with which the Winnipeg pain clinic was simply unable to deal. She had been taking narcotics for so many years that they proved infective. The Doerksens had been married for 59 years. They had been dating for three years before that as teenagers. They got together when he was 17 and she was 16. Sixty-two years later, she died in the family garage from carbon monoxide poisoning and he is charged with assisted suicide. I have met Bert Doerksen who is a remarkable and extremely intelligent man. He has not been the same since his wife's death -- he misses her terribly. He has cancer of the bone marrow and of the esophagus. The Crown said that if he were to plead guilty he would not be jailed. Bert Doerksen refuses to plead guilty. He says he was born clean and plans to leave this life clean. I suspect he will not plead guilty because that would involve an admission that he had done wrong, something which he is not prepared to accept.
According to the attorney general's department, there has been vocal opposition expressed to the dropping of the charge against Bert Doerksen. That opposition has come from the disabled community. The Crown refuses to drop the charge.
I wrote an op-ed piece for the Winnipeg Free Press a few months ago in which I quoted from the prosecution's guidelines regarding when it is appropriate to stay proceedings in a case. I pointed out that about six of their eight criteria fit the Doerksen case. They will not drop the charge.
I have heard that the Crown is hoping that he will die from cancer. That will alleviate the Crown from the spectacle of putting Bert Doerksen on trial.
I have said that it is my view that the committee's mercy killing proposal has scant chance of enactment. There is another avenue of approach, that is, a modification of the mandatory minimum sentencing for murder by a presumptive sentencing scheme such as was argued for in a recent article published in the Alberta Law Review about the Latimer case. The argument is to keep the mandatory minimums but amend the Criminal Code to allow an accused the opportunity to prove, by compelling evidence, why the minimum should be waived in his case. Therein lies a way to mitigate the rigidity of the law for a true mercy killing case.
There is really much that we could do if we were to have some way to get around the ironclad rule that conviction for murder requires a mandatory minimum sentence of 10 years. There are groups lobbying for the repeal of the defence of provocation for a charge of murder. If that happens, I predict a jury will acquit in a case where there should be a conviction, or a jury will convict and then there will be an uproar that the 10-year sentence is too harsh. If we had something like a presumptive sentencing scheme in effect, then we could abolish the provocation defence. Certainly, from the standpoint of an accused, it is not the label that attaches to the crime, it is the sentence.
In the area of the battered woman syndrome and self-defence it is the same thing. There might be a case where we say, "Well, this is really not self-defence. Technically, it does not fit within the parameters of provocation. However, if we had some way around the mandatory minimum sentence, then we could reach some kind of acceptable result."
Senator Beaudoin: You said that there has been no amendment to the Criminal Code since our report was made. I would point out that there has been, here and there. As it relates to the Criminal Code, I have always thought that we should at least implement that part of our report on which we were all unanimous. That dealt mostly with palliative care, the withdrawal of life support and the withholding of treatment. I have no problem with that. We have a serious job to do in this field.
When a matter involves amendments to the Criminal Code there is no problem because we have full jurisdiction. However, palliative care falls partly within provincial jurisdiction and partly within federal jurisdiction. In many cases, it falls entirely under provincial jurisdiction. Nonetheless, there is such a thing as the evolution of jurisprudence. It is true that the Criminal Code has not been amended, but there have been certain cases which may change the law through the interpretation of the law. Are these landmark cases which will cause amendments to be made to the Criminal Code?
Ms Downie: With respect to the area of assisted death on which there were unanimous recommendations, particularly withholding, withdrawal and potentially life-shortening palliative treatment, the most significant case was Rodriguez which was a case of assisted suicide. It had some important passages about withholding, withdrawal and life-shortening palliative treatment. That came out before the report came out. Thus, the legal status did not change from the time of the report because of Rodriguez. Perhaps not a great enough awareness of what is buried inside Rodriguez has come out because the case does say that, clearly, competent adults have the right to refuse life-sustaining treatment no matter what. It says that there is a difference between the ever-escalating levels of morphine and an injection of potassium chloride. It is a very important case for those points. However, the problem is that it was an assisted suicide case; it was not about withholding treatment or withdrawal of life support. It does not touch the remaining grey areas of withholding and withdrawal.
You could argue that you do not need to have the legislation around withholding and withdrawal because of a certain passage in Rodriguez. I would take exception to that because you want a clear statement and not some passage buried in a case that is not about withholding or withdrawal. Most doctors do not know about this paragraph buried in Rodriguez.
More important, there are other aspects of withholding and withdrawal upon which the case does not touch in the least, and that is why we need legislation. We do not have cases to make the clear point about mature minors who are refusing treatment, or those who demand treatment rather than refuse it, or incompetent adults without advance directives. Those are not touched by Rodriguez or in a convincing way by any of the cases we have seen. The cases subsequent to Rodriguez are low level. We either need some clear legislation or we need the court to rule on a range of these cases.
Those are the two avenues we have for getting clarity on the legal status of the range of issues that arise in the context of withholding, withdrawal and potentially life-shortening palliative treatment.
Senator Beaudoin: I agree with you that we need to amend the Criminal Code. With respect to the withdrawal and the withholding of treatment, the jurisprudence is perhaps unclear and we need some amendments to the Criminal Code. This would benefit the families, the doctors, the nurses, et cetera.
As you said, the Rodriguez case dealt mainly with assisted suicide and did not touch on withholding or withdrawing treatment. It certainly was not part of the decision.
Ms Downie: It was obiter.
Senator Beaudoin: It was a five-to-four decision. We consider that the Rodriguez case is clear in respect of assisted suicide, and that is all we say, not more, not less. In respect of the other two issues, withdrawal and withholding, we have a lot to do.
I would like to know if you do or do not consider that the jurisprudence has shed any light on this issue, because you have analyzed a number of cases since 1995, and obviously any information you can give us may throw some light on the decision that we must make.
Ms Downie: Let us take a couple of examples of the pockets of grey area within withholding and withdrawal, and consider the cases which touch on those issues. One example is related to mature minors. That is left unclear, as you yourself recognized. As you noted before, the jurisdiction rests with the provinces, and so what we have is some provincial legislation that has made it clear that minors' refusals of treatment should be respected, but there is some confusion in the legislation. Sometimes they say it is any refusal, as long as the minor is competent, as competent as an adult; and others say it is if he or she is competent and is making the decision in his or her best interests.
There is similar confusion in the case law. We have, for instance, two cases out of B.C. that are important here. In one, the judge says that if you are a minor but you understand the nature and the consequences of the decision to be made, your refusal should be respected, except the court always has parens patriae jurisdiction, which means the court can step in if believes the minor is making a bad decision. That case says it is a limited mature minor rule. Another decision came from the Court of Appeal a short while later. One judge in that case said it is an unlimited mature minor rule, that you cannot have a best-interest tag -- it does not apply to adults so it should not apply to competent minors. Another judge in that same case, though, said, no, we retain that limit so that, a minor must be not only competent but making a decision that is in his or her best interests.
I would suggest that, in the context of mature minors, the case law does not resolve the issue for us at all. If anything, it muddies it. At least the issue has been considered, which was not what we had in the past, but we have no clear answer.
Similarly, with respect to unilateral withholding and withdrawal, we do not have clear enough direction from the case law. There are no cases out there that solve the problem for us. There is nothing to get the legislators off the hook, so to speak -- to be unsympathetic about it -- for the absence of responses to the unanimous recommendations made by the Special Senate Committee on Euthanasia and Assisted Suicide, because you could have resolution through the case law, but we have not seen it. It is coming, and if the legislators do not move, I believe that, within five years, we will have something from the Supreme Court on the mature minor issue and on the unilateral withholding and withdrawal issue. They will be forced to deal with those issues because the cases will come before the courts and they will carve off little bits and pieces of the issues. Rodriguez deals with a certain area and we now have the statement about competent adults. Nancy B. stands for something. All the cases will slowly pick away at all the little grey areas regarding withholding and withdrawal.
Eventually, therefore, 10 or 20 years from now, I might be able to tell you that it is clear, and that I can patch it together for you. From this case, I can tell you this; from that case, I can tell you that. At what cost will that be, though, to all those people who will have to take their cases through the system instead of having the whole range of issues dealt with in hearings that cover all of the concerns, at which the best advocates are able to make their cases? All sorts of advocates could be involved in such a setting, as opposed to the constraints you are familiar with in making law by case law. We can get there but it will take a long time and it will cost quite a price. We don't have the cases to help us that we hoped we would have had after five years.
Senator Beaudoin: I could not agree more. We should not leave that to the courts. We must accept our responsibility, and introduce and pass legislation.
Mr. Sneiderman: The Nancy B. case is a decision by a trial court judge, yet the case has had considerable impact. The people who have had to get that message are the physicians. The message they need to get is that a mentally competent patient has the right to refuse treatment, even if, in the physician's considered judgment, the treatment will restore a quality of life that the physician regards as tolerable.
I am sometimes involved in discussions with physicians and with medical students. They all know about this case. I can recall attending a seminar with medical residents, where a nurse was brought in on a gurney, playing the role of Nancy B., and each of the residents would have to go up to her and engage in a conversation. "Nancy B." would begin the conversation by saying it was time to remove the respirator and to let her die, and there would be a discussion between the patient and the medical resident. One of the medical residents was arguing with "Nancy B." and telling her that she could not abide by her request. She explained that, out of her religious convictions, it was simply impossible for her to grant the patient's request. I then commented. I said to her, "There was a sign on Harry Truman's desk: If you can't take the heat, get out of the kitchen. You are going to be a physician and your religious principles are a matter between you and your God. If you feel you cannot comply with her request, then you are obliged to transfer her to another physician, but you have to understand that that is her legal entitlement." She did not respond to me. She looked rather upset with me. Then a number of her fellow residents injected comments supporting what I had said. They said, "Look, you heard her. She said disconnect the respirator, and she is mentally competent. You can talk to her, you can certainly attempt to persuade her otherwise, you cannot coerce her, but the bottom line is that it is her decision." This decision by a trial judge has had a considerable impact.
[Translation]
Senator Pépin: I was a nurse at a time when we had to refuse to give morphine to a patient, even if he or she was in a great deal of pain, if we knew that, given the patient's weakstate, the morphine injection could be fatal. Later on, the legislation as well as the Catholic position changed, so that nurses were allowed to give morphine to such patients.
Ms Downie, you said that a minor could be considered to be an adult if he or she has a good understanding of the legislation and if the request is clear. However, a court or a doctor could decide otherwise if the request cannot be granted. Let us take, for example, the case of a 15-year old minor with leukaemia, who would find the treatment too painful and ask that it be discontinued, could a doctor, a judge or a parent object to the request? I am not too sure about that.
A few years ago, the age of majority for medical treatment was different from one province to the next. Is that still the case? Out of all the Canadian provinces, Quebec had the lowest age of majority at the time. The age of majority in Newfoundland was 19, whereas in Quebec, you only had to be 14 or 15 to get the pill, for instance.
[English]
Ms Downie: First, the age of the minor does vary from province to province. There is age of majority legislation in every province, and it applies from age 18, 19 and up. Quebec has legislation that governs consent of minors and refusal of treatment down to age 14; and that province has had that legislation longer than any province has had similar legislation. You do find this somewhat odd situation.
Senator Pépin: Could a child of 14 be authorized to do something as compared to someone who is considered to be a minor at age 18 in another province?
Ms Downie: Yes, exactly. You also have a problem in that you are 17 years and 364 days old, yet you cannot consent. However, two days later you can. What happens to a person's competence in a 48-hour period? That is the absurdity of linking consent to age.
In the common law, we have moved away from that. There is recognition that it should be about competency and not about age, and that you do a competency test for every minor as you do for every adult. If you find that someone under the age of majority is capable of understanding the nature and the consequences of the decision, then they should be the decision maker. That is the start of the mature minor rule that is reflected in some provinces through legislation, but not in all provinces. There is muddying of the rule because in some places it is an unlimited rule and in others the decision must be "in the best interests" of the person. You can imagine a situation where you have a 15 year old who has end-stage leukemia and is clearly dying. This teenager has a poor prognosis and has undergone all kinds of chemotherapy. However, this minor understands the situation and says, "Enough is enough. I refuse to continue." The judges may say -- and, we have a trilogy of cases on teenagers refusing life-sustaining treatment -- "Absolutely. Yes. Your refusal should be respected." In each of those cases, the judges understand the decision and they recognize it. If they are putting themselves in that minor's shoes they are thinking to themselves, "That is what I would do." It is a reasonable decision in their minds. The question is: What happens when the minor is making a decision that the judges do not think is reasonable? That is where you get this inclination to have a "best interests" tag on the mature minor rule. That is dangerous because you start to get into assessing the quality of someone's judgment. We do not do that for adults, so why are we doing it for 17 year olds? For 364 days of the year they must make only the right decision, but adults can make the most foolish decisions in the world and we will not interfere. It will be interesting to see the case where a judge is not sympathetic to a decision of a 15 year old regarding the refusal of treatment. The judge may think it is a poor decision. If a case like that were to go to the Supreme Court, we would get an answer to the mature minor issue.
Mr. Sneiderman: Keep in mind that, from an historical perspective, the mature minor rule developed in the context of cases of minors seeking treatment for not only sexually transmitted diseases but also birth control. The stress was not so much upon the decision-making process of the minor but the fact that the treatment being requested clearly served the minor's best interest. The phrase "mature minor" refers to the competency of the minor. We do not have a clear legal definition of mental competency, and we probably never will.
We must also keep in mind that adolescent decision making is not necessarily the same as adult decision making. There was a case in Saskatchewan of a 12-year-old boy who had cancer. His father was refusing to consent to the medically recommended treatment which entailed the amputation of part of his leg. The child expressed his own deep convictions that he agreed with his father. That case attracted partisans on both sides.
We know that adolescents tend to be more influenced by their peers and by their parents than by adults. We also know that adolescents are often more concerned about bodily appearance than are adults. I know of a case in Winnipeg of a 16 year old who refused to consent to chemotherapy because she would lose her hair. She insisted that she would rather die than lose her hair. Her mother said, "We will get you a wig." The girl replied, "It is not the same!" She did, however, receive the chemotherapy, and there was no court proceeding. She was simply told that the treatment would be administered whether or not she liked it.
There is also the question of short-term versus long-term consequences because adolescents are often more concerned about the short term than the long term.
This is a complex issue. We can say that, if the minor is mentally competent then the minor must decide because, if we only let the minor decide when we as adults agree that the decision serves the best interest of the minor, then we are making a mockery of the rule. The question remains: When is the minor mentally competent to decide? As Ms Downie pointed out, the cases that have been decided have all involved cases with rather grim prognoses, so they are easy to decide. It is playing the numbers game. If the medical witnesses testify that, even with aggressive treatment, the odds of a successful outcome are 10 or 20 per cent, you must assess whether it is worth it As Ms Downie pointed out, you are the judge. You place yourself in the shoes of the minor and you say, "I would decide as that minor has decided." What we have yet to face is a case where there is an excellent prognosis for recovery and the minor is refusing life-prolonging treatment.
Senator Pépin: The other issue concerned medical students. You told us about the medical student who was refusing treatment based on her religious beliefs.
Mr. Sneiderman: She was a resident.
Senator Pépin: She was a resident. Currently, medical students and nurses are lobbying to be transferred from one department to another one because, for example, they may be working in a department where they must assist in abortions and they can not do so. I understand the lobby is quite strong.
I have not been involved on a hospital floor for many years, but I do remember the impact of the discussion surrounding birth control and the persuasion it took before nurses would cooperate. Of course, the impact of that is not comparable to what we are discussing now.
What trends are young medical students adopting?
Mr. Sneiderman: I really cannot say, but I can tell you something about medical students in Manitoba.
Senator Pépin: Are they more inclined to accept what the patient says and to help the patient?
Mr. Sneiderman: I think that the new generations of medical students and physicians are more respectful of patients' rights than their predecessors. There may be two reasons for that: First, a recognition that the principle of patient autonomy means something, and second, the fear of being sued for disregarding the patient's instructions. That may be even more effective.
Senator Pépin: I forgot about that.
Senator Corbin: Out of curiosity, in the conscience case to which you alluded where the nurse refused to comply with the patient's wishes, did that event take place in a religious environment? Was this a public hospital? Was the patient of the same faith?
Mr. Sneiderman: This was in the context of a seminar organized by one of the professors of medicine who has expertise in medical ethics, and it was an exercise in role playing. This was at the Health Sciences Centre in Winnipeg. The religious convictions of the patient were never discussed. The medical resident referred to her religious convictions but did not specify what they were. She did say something about the sanctity of life and that she simply could not abide the decision by a patient to die. She said it might be different if the patient were terminally ill and dying, but this patient was not. That is all she said.
Senator Corbin: It was an ethics game, really?
Mr. Sneiderman: I have taken part in a few of these scenarios, and it is interesting how people really get caught up in it. It is not play acting to them; it becomes real.
Senator Corbin: We have such thing as war games. That is an analogy.
Mr. Sneiderman: Yes.
Senator Corbin: The more general question relates to the purpose of this whole exercise, I suppose.
Why have governments or parliaments or assemblies not moved on some of the issues raised in the Senate's report, "Of Life and Death", and for how long will one need to wait before there is action on that front?
Professor Downie, I do not recall your exact terms, but you referred to the courts, case by case, building a societal consensus, and to establishing precedents by bits and pieces. That takes us back to how euthanasia became legal in the Netherlands, for example. The courts ruled where Parliament refused to tread.
Leaving the legality aspect on the side for now, would you have any thoughts about governments and parliaments and assemblies not assuming their responsibilities, social or societal, with respect to this? I may be looking for something political or philosophical, but that is what this is about.
Ms Downie: It is a fabulous question. Why has nothing happened? I am not the best person to answer that question. It might take a political scientist together with an anthropologist to come up with an answer.
To be candid, I think it is an abdication of responsibility. I have no trouble reaching that conclusion, but I do have trouble understanding why that is so. Perhaps I do not understand enough about the forces of politics. I look at it from the outside, and it appears to me that this is an issue which is associated with a polarizing issue. I am talking only about the unanimous recommendation. I am not talking about decriminalizing euthanasia. It is about withholding and withdrawal of life-sustaining treatment. Why will people not touch that issue? I think they fear that, if you introduce legislation in this arena, people will think you are already introducing legislation on euthanasia and assisted suicide, and that you are disguising the issue in sheep's clothing. They may fear that you are taking that first step and that we will not be able to stop the slide down the slippery slope. The fear that attaches to a polarizing issue relates to the outcome of the vote on it. There are very vocal minorities in this area who seem to carry a lot of political clout. It is perfectly clear that the vast majority of Canadians support this kind of legislative reform, yet obviously the calculation being conducted by those who figure out what we will and will not touch as elected politicians is: What will or will not get us re-elected? The consensus is that this will not lead to re-election. I think that is very unfortunate.
I believe that people have a responsibility to do this. I hope that you will do it, that you carefully educate the public, and that you reap enormous rewards for doing it. This is an intriguing opportunity for the Senate to do something. You do not need to think about getting re-elected. You can put aside all those political questions and recognize that we have a serious problem here in Canada in that we are not caring properly for the dying. You need not open up the other debate, but you can touch a part of it and do something about it. People will applaud you for doing so if it is done carefully, and we will be better able to care for the dying. Most health workers will be better able to do that, and most of them want to do that. How can we lose? We can get away from the politics and focus on the point of it all, which is enabling everyone to care for the dying through law reform which is not controversial in its content. I would throw the question back to you and ask why it has not happened from the outside.
Senator Corbin: I am of the same view. I am also bothered by this lack of action.
I do not want to get into religious perspectives in relation to this matter, but even the Vatican is in agreement on some items in our report. I do not believe the public is broadly aware of that, and I do not believe governments are broadly aware of what is mean by a do not resuscitate order, artificial life support and that sort of thing. The Vatican has clearly expressed its views on that. Professor Sneiderman may wish to add to that.
Mr. Sneiderman: In 1957, Pope Pious XII, who is not one of my heroes, drew a distinction between extraordinary and ordinary treatment. Now one hears the distinction between proportionate and disproportionate treatment. The church at that time stated that, if treatment offers no reasonable hope of benefit, it need not be applied.
Many Catholic priests still do not get that message. I know of cases in Winnipeg where there were family conflicts and where the priest said that the patient had to be treated because life is sacred. The priest did not understand what his own church dictated more than 40 years ago.
As well, there may be definitional confusion surrounding the term "euthanasia". Whenever I take part in a forum about assisted suicide and euthanasia, I very carefully define the terms. There was a time when a distinction was drawn between passive euthanasia and active euthanasia. Those terms have fallen by the wayside. What was called active voluntary euthanasia is what is now meant by euthanasia in the debate over the legalization of assisted suicide and euthanasia. The termination of life-prolonging treatment is now simply called "the termination of life prolonging treatment". It is no longer called passive euthanasia. The word "euthanasia" raises a red flag. To some people, "termination of life-prolonging treatment" is euthanasia, and if that is euthanasia there must be something wrong with it. One must be very clear about the definitions.
Ms Downie: A more sympathetic interpretation of why nothing has been done is that there have been some very high profile euthanasia and assisted suicide cases over the past few years: Robert Latimer, Nancy Morrison and so on. Perhaps people believe that legislation should not be introduced while there is press coverage of these euthanasia cases because the public will not be able to separate them.
Senator Corbin: That will go on forever.
Ms Downie: That is an issue. Can that be used as an excuse, because the cases may never end? Morrison has been dealt with. Will something else happen before Latimer is concluded? The fear of people may be the combining of the euthanasia cases with the withholding/withdrawal legislation. The challenge is to be very careful about the language and to publicize the language so that the public knows what you intend. In that way, I think they will embrace it.
Senator Pépin: The palliative care people will listen. However I do recognize that when the word "euthanasia" is used, everyone gets scared.
Mr. Sneiderman: In my opening remarks I said that I would comment on the Morrison case, and I forgot to do so. With your premission, I would like to do so now.
The Chairman: Yes, please.
Mr. Sneiderman: In his decision at the preliminary hearing, the judge said, first, that there was really no case to go to the jury on the question of murder, and that was because there was some evidence that the massive amounts of pain killing drugs that had been administered to the patient were not getting through because the IV had become dislodged. There was a theory that if those drugs were not getting through, perhaps the potassium chloride was not getting through. However, the fact is that one minute after the potassium chloride was administered, the patient's heart stopped. Therefore, I think that there was a prima facie case to go to the jury.
Aside from that, however, the decision that there was no included offence that could be proven against Dr. Morrison was clearly wrong, because there was uncontested evidence that she administered potassium chloride and that clearly, in law, is the crime of attempted murder. According to the Criminal Code, even if it is factually impossible to commit the offence, an accused can still be convicted of an attempt.
One example I use with students is grandma rocking in her rocking chair. You are the heir of her estate and she just will not die so you pump her full of lead. It turns out, on autopsy, that granny died of a heart attack ten minutes before you shot her. That is still attempted murder. You cannot kill a corpse so you cannot be convicted of murder, but it is attempted murder, as is the Morrison case.
It is interesting to question why, in the face of what I think is clearly the law, this case was brought to a close, although that is not to say that I think that was not the best result given the circumstances of the case.
Senator Roche: Professor Downie, I read the article in The Globe and Mail today entitled "Why we should embrace death". The author is Daryl Pullman, who is Associate Professor of Medical Ethics at Memorial University in St. John's. He makes some rather interesting juxtapositions between the appropriate role of the physician and the inevitability and mystery of death. He then distinguishes between advancing medical science and a death denying culture.
There are terrible complexities in this issue with regard to how to protect the integrity and sanctity of life, on the one hand, while at the same time protecting the rights of health care providers and the rights of patients.
What would you like this committee to do? Is it unfair of me to ask you to sum up your view? When people ask me to sum up my philosophy, I tell them to read my books. Are you able to tell this committee, from your experience, what you would like this committee to recommend with respect to the juxtaposition that I put to you about retaining the sanctity of life and protecting the rights of physicians, health care providers, and patients?
Ms Downie: I will give you a limited answer to that question. I will limit it to the context of the unanimous recommendations; therefore, what to do about the issues that were tackled in those unanimous recommendations.
If you look at the core values in our legal system, which I think are quite widespread throughout society, you find the values you have expressed in the language of rights. You find autonomy, equality, dignity, life. Those are clearly the core values of our system. They are in tension at times, and in the arena of assisted death they are frequently in tension. However, I think that we find ways of resolving those tensions in other areas that can help us understand how we should resolve them in the area of assisted death.
For instance, with competent adults, throughout our system we have recognized that autonomy prevails as long as no one else is being harmed by the expression of the autonomy. In extremely colloquial terms, it is my right to swing my fist within an inch of the tip of your nose. That runs throughout our legal system and our social fabric. If you apply that to the context of withholding, withdrawal, life-shortening palliative treatment and so on, that tells you that competent adults should have access to potentially life-shortening palliative treatment upon request, and that their refusals of potentially life-sustaining treatment should be respected.
I suggest that the committee ensure that those statements are reflected in the law and in practice such that competent adults have their wishes respected.
You then move to incompetent individuals. If they have advance directives, the autonomy analysis plays out there almost as cleanly. You have a statement of their prior wishes, you know what they would have wanted, so you should respect that and provide the treatment or respect the refusal, as the case may be. With incompetent individuals, we switch to a different form of analysis, the best-interests analysis. It still balances life against other interests. However, it is quite widely accepted that there are times at which life is no longer worth living and you can reasonably say that it is not in the best interests of an incompetent individual to continue to be treated. You can certainly reasonably say that it is in the best interests of an incompetent individual in pain to receive adequate pain control, even if that may shorten his or her life somewhat.
The first priority that I would suggest is to embrace the recommendations yet again, try to find some new way to get them taken up by those who have the power to take them up, and clarify the legal status of withholding and withdrawal of life-sustaining treatment for all categories of individuals. The legal status of the provision of potentially life-shortening palliative treatment must be clarified so that people may receive adequate pain control.
Then you should move to the arena of modifying the sentencing. I do believe that the mandatory minimum life sentence with no possibility of parole for 25 years is inappropriate. It does not serve the interests of society or protect the people we are seeking to protect.
Senator Roche: At the back of your brief you talk about dealing with the urgency of why legal clarification is needed. You state:
For example, people are dying in excruciating pain.
Can you point the committee to some empirical evidence as to what kind of numbers would be involved that led you to make that statement?
Ms Downie: No. I assume your committee will call not only palliative care experts but individuals who care for people in other kinds of circumstances where there is intractable pain. Not everyone who is dying or everyone who is in intractable pain comes anywhere near a palliative care physician. You will get the most up-to-date data from them. I cannot give you the most up-to-date source. I can provide you with authority for that statement. Certainly, you can also rely on anecdotal evidence.
Senator Roche: I would rather not rely on anecdotal evidence. If there is material of a professional nature, I would be happy if you would make that available to the committee.
Ms Downie: There is an enormous study coming out in the states, which I believe is called the "Support Study". I can send it to you.
Senator Roche: I would have thought that in medical science today people who are in excruciating pain are given sufficient medication.
Ms Downie: There are two problems. The first is access to people who know how to manage their pain, whether they be palliative care specialists or other kinds of physicians who know how to manage pain. There is a terrible problem in terms of access to people who know how to control pain. The second problem is that not all pain can be controlled. Even the most fervent palliative care advocates, someone like Dr. Balfour Mount who is a fabulous palliative care provider, will say that at least 5 per cent of people have pain which cannot be controlled.
Senator Roche: You also state in your brief:
People are attempting suicide, failing, and ending up in worse shape than before they attempted suicide.
Is there any empirical evidence to support that statement?
Ms Downie: There is.
Senator Roche: Can you make that available?
Ms Downie: Yes.
Senator Roche: Professor Sneiderman, given your critical comments on the 10-year sentence for Robert Latimer, can you give the committee your view of what you think an appropriate sentence in such a case should be?
Mr. Sneiderman: I find it difficult to do that because I am not a sentencing judge. A judge has to look at a pattern of sentencing to determine the appropriate sentence in a given case.
Given the facts of that case, I thought that Justice Noble's sentence was appropriate. I have manila envelopes filled with newspaper clippings and reported cases of horrific offenders who have committed horrific offences and where not only are the maximum sentences less than what Robert Latimer received, but the actual sentences imposed are considerably less.
The sentencing provisions in the Criminal Code for murder are based on the proposition that murder is the worst crime that can be committed. I think that is often the case. However, I do not believe it is always the case. Keep in mind that the focus of attention has to be not only on the crime but also the criminal. I believe the punishment has to fit not only the crime but also the criminal.
Senator Roche: You made that point in your testimony. You threw me off a bit in the opening sentence of your response to my question, if I heard you right the second time, when you said that you thought the sentence for Latimer was appropriate.
Mr. Sneiderman: If I said that, then I misspoke.
Senator Roche: I will give you this chance to correct yourself. I took it from your opening testimony that you thought the sentence for Mr. Latimer was grossly inappropriate, given the circumstances of the case.
Mr. Sneiderman: I thought it was inappropriate, that it was too severe. The 10-year sentence was too severe.
Senator Roche: Do you think there should have been any sentencing for Mr. Latimer? If so, what should that sentence be, in your view?
Mr. Sneiderman: The defence of necessity was presented in that case. The trial judge at the first trial refused to allow the jury to consider that defence. I believe that was the right decision. It may be that a case will arise in which a defence of necessity may be allowed when the accused has committed a mercy killing. That would probably be easier in a case in which there was the consent of the deceased. When there is not the consent of the deceased, when it is a case of nonvoluntary euthanasia, then it really does establish a dangerous precedent that someone should be allowed to decide that someone else is better off dead. I do not like no-never rules. Hypothetically, one might be able to conjure up a scenario in which that would be an appropriate defence. In the Latimer case, I would say that what he did was wrong. The crime has been proven, but then there is the question of the punishment.
As I have indicated, I am not a sentencing judge. I really cannot speak from any experience as to what would be an appropriate sentence in this case. All I can say is that I thought that Justice Noble's sentence was appropriate. That is a sentence with which I certainly can live. I think he should serve some time and, according to Justice Noble, he would and he did. He received a sentence of one year in custody. He did not serve a year. He was released early, but that generally is what happens in our penal system in relatively short sentences.
The Chairman: Professor Downie, you talked about advance directives and you said that there is one province and one territory without legislation. I am assuming the province we are talking about is Prince Edward Island.
Ms Downie: No, it is New Brunswick. P.E.I. has passed it but not yet proclaimed it. B.C. has also passed it but not yet proclaimed it, although it is expected to come into force on February 28, 2000. We just received that date last week.
The Chairman: Do you know of any attempt on the part of the federal government or, indeed, the provinces collectively, to have one province's advance directive legislation accepted in another province? For example, I live in two provinces, Manitoba and Ontario. I have, because I am concerned, advance directives in both provinces, but if I just had one in Manitoba, would it be respected if I were to have an accident or a terminal illness here in Ontario?
Ms Downie: There has not been a collective attempt, to my knowledge, certainly nothing at the federal coordinated level, and nothing has resulted where all the provinces have gotten together to have a reciprocal arrangement. I have, in the back of my mind, a niggling feeling that one of the provinces has something about respecting advance directives from other provinces as long as they follow the basic form of the Ontario 1996 legislation. If we do a careful review, we might find, in discrete pieces of legislation, instances where, if you are close enough, you will be captured.
You will run into problems where some provinces do not have both kinds of advance directives. There are instruction directives and proxy directives. The instruction directive is where I set out the kinds of decisions, and the proxy directive says who should make them. In Nova Scotia, we only have a proxy directive, so if you filled out an Ontario instruction directive, which lays everything out wonderfully clearly, but do not appoint a proxy, you will not be covered by the legislation in Nova Scotia.
I think you could put forward a different kind of argument to have your advance directive respected in another province, other than finding some kind of reciprocal provision in the legislation, and that would be through the common law. We have the case law of Malette v. Shulman from the Ontario Court of Appeal which says an advance directive must be respected. If you were in another province, say Nova Scotia, and you had an instruction but not a proxy directive, you would have nothing under the Medical Consent Act, which is what our legislation is called, but I might argue that your instruction directive is a clear statement of your prior wishes and we should be bound by that under the common law as opposed to under the Ontario legislation. Clearly, we would not be bound by the Ontario legislation. What I tell people in gatherings, if they are worried about exactly this, is that they might be able to make that move. It is certainly what I would be arguing if I had a family member in Nova Scotia and that was happening. I would be arguing the common law application.
It is another way to go, but it is also just an Ontario decision, so we do not have the Supreme Court of Canada speaking on that -- although, there is again a little twist. Malette v. Shulman is embraced in a paragraph in Rodriguez. It recpgmozed that it can rely on the common law in certain situations. It is another example of how, by patchwork, I can make an argument for you, and, by patchwork, we can cover all the different areas of withholding and withdrawal, but it is muddy and complicated. Having legislation in place would make it all so much easier. People who do not have access to someone who spends far too much time thinking about end-of-life issues would be able to have their wishes respected more quickly, certainly, and probably more evenly.
The Chairman: Now that we have advance directive legislation in so many provinces, what is your sense of public knowledge about those advance directives? My own personal experience is that, when I talk to Manitobans about the fact that we have had advance directive legislation for a considerable length of time -- in fact we predate many of the other provinces -- they do not even know there is such legislation in the province. Is there any educational programming going on, to your knowledge, to let people know about their right to draw advance directives?
Ms Downie: I do not know of anything that is being done by governments, federal or provincial.
What I have seen are more local initiatives by organizations such as Canadian Pensioners Concerned. They put together a fabulous educational package on advance directives. Throughout the country, pockets of people have recognized that certain groups of seniors have a need to understand what the law is with respect to advance directives in their particular province, that is, how it is done, and they have put together a package. You see those kinds of initiatives, but they are limited in their effect because, although they may reach their audience, they do not reach a wider audience than those people who belong to the group. I do not think it is coordinated well enough.
My experience is similar to yours. People do not know about the legislation in their province. There is the additional element of not having coordinated educational programs, and that arises from our resistance to confronting our mortality. I took advance directives home to my family, and said, "Okay, everyone, sit down and fill these out." I was not greeted with, "Oh, thank you so much." People are reluctant. However, if you provide opportunities, very carefully crafted opportunities, for people to have the conversations they need to have in order to construct good advance directives -- and it is always very easy to do a useless advance directive -- then we would start to see it happen more. The understanding of them is not widespread, and the completion of them is not widespread.
It is a good initiative. Some of the initiatives that were recommended in here, I did not touch on because I focused on the legal recommendations. However, many of the non-legal recommendations are critically important, focusing around education campaigns, national guidelines and national programs. They will make an enormous difference, and I hope they are picked up.
Mr. Sneiderman: What we need is a major public figure to wind up in an intensive care unit and for the spouse to appear in the media and say, "My spouse has signed an advance directive, is refusing the continuation of life-prolonging treatment and, accordingly, that treatment will be stopped." That happened in 1994 with respect to Richard Nixon and with respect to Jacqueline Kennedy.
Those two cases really prompted increasing knowledge in the United States of health care directives. We realize how important the media is. All it takes is for that kind of a case to be picked up by the media. That can do a lot more than local initiatives.
The Chairman: Professor Downie, you were speaking about the confusion in the law as a result of not having clear laws, and one of the issues you used as an example was someone calling you and asking your advice, and you having the luxury of saying, "I can give them advice, because I will not be sued."
In your role with the law school, do you get many calls of that nature?
Ms Downie: I do get calls where people describe their situation and ask me if they can stop treatment.
I had one that was particularly poignant because it came in the shadow of the Morrison case. If you remember, there was a publication ban in that case, so a lot of people did not know what she had done, and thought it was either withholding of treatment or ever-escalating levels of morphine. There was a huge chill.
I received a call in which I was told of a woman who was being managed at home. The woman was on a respirator and she wanted that to stop. The family wanted it to stop. They all felt it was time to stop. I told them that the law allowed them to do that. They then said, "Nobody will do it," and they asked: "Why will nobody stop the respirator in her home?" The reason is that they are concerned that the doctor would drive up, and since it is a rural community, people would see the doctor's car in the driveway. The doctor's car would leave, and then how much later would the ambulance or the hearse arrive? The fear was that they would be charged with something. I do get these calls.
That was an extreme fear because of the Morrison case, which was withholding and withdrawal. They said they would be happy to have her come into hospital and they would do it, because they did not fear that exposure. It would not happen.
Health care providers largely understand that not only may they, but they must, remove life-sustaining treatment that a patient or their surrogate is refusing. However, there is still a chill in people's hearts because of the lack of clarity.
I do not get lots of calls, but I get enough to bother me.
Some people will tell me that, since the law is there, we do not need legislation. If you push hard enough, you can find the law, it is clear enough, but I believe that you need the legislation so it is perfectly clear to everyone. Then everyone can relax somewhat about it and turn their attention to caring for their patients instead of worrying about someone knocking on their door.
The Chairman: Professor Sneiderman, one section of our report deals with a matter which I have recognized over the years as, perhaps, causing the greatest unease. I am referring to the section which deals with artificial hydration and nutrition.
When talking about the L. and H. case, you said that the touching of a patient without consent is assault. May I assume, therefore, that you believe that implanting intravenous lines, or a shunt, if either were the vehicle used to provide nutrition and hydration, without the patient's consent, would also be a form of assault?
Mr. Sneiderman: Not necessarily. It would depend upon what the patient had consented to initially. It might also depend upon what the family says about the situation. As you know, there is much that happens in the reality of hospital practice that is not necessarily legally recognized. For example, when a family member is asked to consent to treatment for an adult, unless the family member has been appointed as the patient's legal guardian, or the family member is acting pursuant to a proxy directive, technically speaking that family member has no legal authority to make medical treatment decisions.However, that is simply not the reality of what happens in the real world; and how could it be otherwise?
I do not think we could say that such a patient is being assaulted. I also have serious problems with the Manitoba case which dealt with some very profound issues, and did so in two pages. Interestingly, I heartily agreed with Justice Twaddle when he expressed the view that he simply could not understand why anyone would wish to prolong the life of a patient in a vegetative state. That happens to be my own personal opinion.
The Chairman: Let us take a situation in which the patient is conscious and refuses to give permission for his or her own artificial hydration and nutrition, and then, in fact, the lines are connected. Is that assault?
Mr. Sneiderman: Yes. If the patient is mentally competent and has said no, then "no" means "no".
The Chairman: If a competent patient who has those lines connected wants them disconnected, and that is not done, is that assault?
Mr. Sneiderman: If the patient is competent, and there is a treatment in place and the patient has asked that the treatment be stopped, then the treatment must be stopped. You can draw an analogy here to the provisions related to sexual assault in the Criminal Code. "No" means "no", and "yes" now may mean "no" two minutes later. If it is "no" two minutes later, then that is what counts, not the "yes" from two minutes before.
Senator Beaudoin: I was absent for a few minutes and when I came back you were talking about the Latimer case. I remember we studied that five years ago. I was one of the people who suggested we study that case. I am looking at the recommendations in the report of the committee, page 88.
Did you consider, Madam Chairman, that it was really a study that was conducted on this and, if so, what was the result of the study? Were the findings unanimously agreed to by the committee members?
The Chairman: No.
Senator Corbin: What issue are we discussing here?
Senator Beaudoin: Compassionate homicide.
The Chairman: What is clear is our recommendation that a third category of murder be created. Our recommendation was that the individual still be charged with murder, go through all of the legal processes, and if he or she were convicted of murder, the judge, in considering sentence, would have the option of imposing a sentence applicable to a third category of murder charge as opposed to a sentence which would be appropriate in a first or second degree murder charge which have mandatory life sentences with 10 and 25 years before eligibility for parole.
It is fair to say, Senator Beaudoin, that much of our interest in that charge came from what we knew about the Latimer case. To be fair, we made no final judgment on Latimer because we knew it would not be over by the time we came out with our report. That was only the end of his first trial. We were then quite sure there would be a second trial. That, of course, has happened, and now there is an appeal before the Supreme Court of Canada. On the first appeal to the Supreme Court of Canada, the court ordered a new trial.
Senator Beaudoin: That is exactly, as I remember it. This question, of course, is very important, but we must wait for a decision of the Supreme Court.
Is discussion of this subject now part of our mandate? It has been dealt with in the discussion of nonvoluntary euthanasia.
The Chairman: It is part of our mandate to study the issue of a third category of murder charge, because that was one of the issues on which we were unanimous. Our mandate is to study all recommendations of the committee on which we were unanimous.
Senator Corbin: When you say "we", you mean the members of the committee "at that time". We now have new committee members.
The Chairman: That is right.
Senator Beaudoin: I am not so sure that we were unanimous on that. I agree with what we have said, but were committee members unanimous on this?
Mr. Sneiderman: It says "the committee recommends" and there are no dissenting voices noted on page 88.
The Chairman: The committee recommended that the Criminal Code be amended.
If you look under "voluntary euthanasia" and under "nonvoluntary euthanasia" you will see we had a majority and a minority vote in both instances. However, in this instance you will see at the top, Senator Beaudoin, the recommendation was unanimously adopted.
Senator Beaudoin: That is not a problem for me because I agree with that decision. Do you consider that it is part of our mandate now?
The Chairman: Yes, I do indeed.
Senator Beaudoin: I am of the opinion that we should amend the Criminal Code in a case like this. However, there is no easy answer.
You said that what happened in the Latimer case should not happen again because the sentence was much too high. Is that the case?
Mr. Sneiderman: That is my opinion.
Senator Beaudoin: That is your view.
The Chairman: To be fair, Professor Sneiderman also gave us an alternative related to the creation of a third category of murder, and I know we will want to consider that. He said that, instead of dealing with creating a third category, we should perhaps be reviewing the whole issue of presumptive sentencing. Have I understood you correctly, Professor Sneiderman?
Senator Beaudoin: Would you summarize that for me?
Mr. Sneiderman: First, the committee's recommendations focused specifically on mercy killing; either it is manslaughter or it is a different category of murder. Focusing upon mandatory minimum sentencing for murder, we are not directly dealing with mercy killing because there are other scenarios. For example, the battered women syndrome, where we might say that it is not really self-defence and it is not provocation. There is the defence of provocation. Perhaps, if we did not have mandatory minimum sentencing, we could do away with the myth -- which I believe is a myth -- that there are people who commit murder while drunk and the law accepts that there is not the mens rea for murder. They are all cases in which the victim is someone with whom the accused was angry. It is never a case where someone who gets so drunk that he kills his best friend because he did not know what he was doing. Therefore, if we did not have an inflexible rule we would not need to worry so much about the label that is attached to the act. We could then turn to the punishment. We could simply amend the Criminal Code to provide that the mandatory minimum sentences remain in place. However, if the defence wishes to contest the mandatory minimum sentence after conviction, then it would be for the defence to prove why the mandatory minimum should not apply in that particular case. Perhaps we might even go to a burden of proof that goes somewhat beyond the civil burden of proof.
There is a category of proof in the United States, concerning clear and convincing evidence, that applies in some of the so-called "right to die" cases. It is a burden of proof that is somewhere between the civil burden of proof, preponderance of evidence, and the criminal law burden of proof beyond a reasonable doubt. If the defence were able to satisfy that burden in a particular case, then we would he able to remove the shackles from the judge's hands. The judge still may impose a nine-year or an eight-year sentence, or the judge might decide that it is an appropriate case for no incarceration. That is my proposal.
Senator Beaudoin: I want to be very clear cut in law. Our discussion at that time <#0107> and, it was at the end of our discussion -- concerned a third-degree murder charge. We used that expression, but it was still a murder.
Mr. Sneiderman: Right.
Senator Beaudoin: We did not have time to consider the matter more deeply than that. As the chair said, the Latimer case was before the courts. A murder such as one is certainly not an ordinary murder. Our concern was related to the remedy -- that is, the sentence -- rather than to the crime itself. Of course it is a murder, but it does not make sense to punish that person in the same way as we would punish certain other persons in some other cases. This is exactly what we said.
You have offered us another alternative, namely, that it not be considered murder.
Mr. Sneiderman: No. The crime remains the same.
Senator Beaudoin: The crime remains?
Mr. Sneiderman: Yes. What changes is the options at sentencing. In other words, the crime remains the same, whether first-degree or second-degree murder. The Latimer case was a case of first-degree murder. I still do not understand why the trial judge at the first trial gave the jury the option of second-degree murder. It should have been either first-degree murder or nothing. If ever there was a planned and deliberate killing, that was such a killing. The label remains the same. It is still murder.
We then move to sentencing. Now a judge's hands are shackled. The judge must hand down a sentence of life imprisonment with parole eligibility set somewhere between 10 and 25 years. I would suggest that the defence be given the opportunity to satisfy the sentencing judge that, in the particular case, there are compelling circumstances and the mandatory minimum provision should be waived As you know, for a second conviction of impaired driving, there is a mandatory sentence of 14 days; committing an offence with a firearm carries a mandatory term of one year. However, for the vast majority of Criminal Code offences, there is no mandatory minimum sentence. What judges do all the time -- and what they are trained to do -- is take into consideration factors that are not relevant to the question of guilt or innocence. Those factors can be determinative to the question: What is the appropriate punishment in the particular case?
Senator Beaudoin: Still, the debate remains only on the punishment.
Mr. Sneiderman: That is right.
Senator Beaudoin: That is very different from any other solution. What the remedy should be is the real question.
Mr. Sneiderman: It would achieve the same result in this kind of case, as would the enactment of either of the committee's recommendations, whether it is manslaughter or a third-degree murder charge. It simply does it a different way.
I wrote an article proposing a mercy killing defence that was published in the Health Law Journal. It was about the Latimer case. In the recent article that I wrote, I made no reference to a mercy killing defence, I referred to mandatory minimum sentencing because I had come to the conclusion that the mercy killing route would simply not happen. To me, it is not politically feasible.
Senator Beaudoin: I raised that question because I do not think it should have been dealt with at that section of the report. It does not really come under euthanasia.
The Chairman: You are quite right, Senator Beaudoin. It probably should not have been in that section of the report.
Senator Beaudoin: Logically, it should not be there, in my opinion.
The Chairman: Yes, you are right.
Senator Roche: Did you say a moment ago, Madam Chairman, that this committee will examine the recommendations that were unanimous and not those that were not unanimous?
The Chairman: Yes.
Senator Roche: Is that in the terms of reference?
The Chairman: Yes, it is. That is why we made it very clear that we would not be debating the issues of assisted suicide and euthanasia. We will deal with all the other issues because we were unanimous on the all the others. However, we were not unanimous on our final conclusions about euthanasia and assisted suicide. Interestingly, when we started writing our report, the issues of euthanasia and assisted suicide were our main focus. However, as we heard from our witnesses, it became clear that they wanted to debate many other issues with us, including palliative care, the withholding and withdrawal of life support treatment, and so on. The report became much broader than what we had originally intended the report to be. We felt it was necessary to address the issues that were of clear concern to the Canadians who appeared before the committee.
Senator Roche: Is it possible to have a firewall between these issues? Is there not an interconnection between palliative care and euthanasia? How will you limit the discussion?
The Chairman: Clearly, there is an interconnection. We are telling the witnesses -- and, we told the witnesses who appeared before us today the same thing -- that we want them to focus on the unanimous recommendations of the committee because we want to examine where the government has gone on those unanimous recommendations. We felt that it was relatively easy for the government to address those issues, since they had a unanimous report. We always recognized that it would be much more difficult to deal with other issues. After all, the Supreme Court of Canada, in Rodriguez, was not unanimous. By the slightest coincidence, the split on that decision was exactly the same percentage as the split in the vote on the adoption of the Senate report.
Senator Roche: Finally then, the work of this committee is to prod the government to implement those recommendations that were unanimous in the report, as distinct from our further reflection on disputed and controversial questions, is that correct?
The Chairman: That is right. To be fair, it is for us to also conduct a review of our unanimous recommendations. Perhaps we have changed our minds on those unanimous recommendations. We had an interesting dialogue today on the number 3 recommendation. We may not reach the same conclusions as the original committee with respect to how to deal with a mercy killing charge after hearing the testimony today from Professor Sneiderman that there might be another way to deal with this issue. Maybe we can provide the government with two options by which they might want to proceed.
The mandatory life sentence of 25 years on first-degree murder was proclaimed when we struck down capital punishment. I am not sure the government will move on that one, but that is my personal opinion.
Senator Corbin: Has the press release gone out?
The Chairman: Yes, the press release went out today. The press release is very clear that the committee will only be considering the unanimous recommendations.
On behalf of the committee, I would thank Professor Downie who came from Halifax and Professor Sneiderman who came from Winnipeg. I apologize for the weather conditions here in capital.
The committee adjourned.