Gordon Kirkby

[Justice, March 10th, 1997]

Mr. Speaker, I thank the hon. member for the question.

As the hon. member will be aware, the Minister of Justice has brought forward significant changes to section 745 of the Criminal Code.

[Supply, March 10th, 1997]

Mr. Speaker, I listen to the Reform Party members with interest as they make the assertion over and over again that if section 745 were repealed today, individuals who have lost loved ones through brutal and tragic acts would somehow be spared the pain of section 745 applications.

It is the correct and predominant view of the law that even if section 745 were repealed today it would not prevent people from applying for a section 745 hearing. All the people currently in the system would have that right which cannot be taken away.

Why do Reform members keep insisting and telling people that somehow their pain will be spared when it will not be? Why do they keep using victims in this shameless manner?

[Criminal Code, March 6th, 1997]

Mr. Speaker, I rise today to comment on Bill C-304, an act to amend the Criminal Code (aiding suicide), introduced in the House by the hon. member for Burnaby-Kingsway.

Let me begin my remarks by recognizing that the hon. member has on a number of occasions attempted to bring the issue before members of the House for discussion and debate. Clearly it is a matter of particular concern to our colleague. I commend him for his efforts in trying to deal with what he perceives as weaknesses in the current provisions of our Criminal Code which deal with aiding suicide.

Before I turn to the specific provisions contained in Bill C-304 I would like speak of the work undertaken in the Senate to examine this and relate issues. The matter of assisted suicide and a variety of subjects related to the end of life care and decision making such as palliative care, cessation and withdrawal of treatment and euthanasia were examined in great detail by members of the Special Senate Committee on Euthanasia and Assisted Suicide. The special committee issued its report on life and death following many months of hearings and deliberation.

The Senate currently has before it Bill S-13, an act to amend the Criminal Code (the protection of health care providers), which is now the subject of second reading debate. The purpose of the bill as stated by the hon. senator who sponsored the bill is to implement the unanimous recommendations and chapters 4 and 5 of the Senate report which deal with pain and pain control and the withholding of and withdrawal of life sustaining treatment.

Senator Carstairs has taken great care to point out when discussing the subject matter and merit of the proposed amendment to the Criminal Code that it does not deal with either assisted suicide or euthanasia. Why is that? I suggest that it is because the members of the special Senate committee were not unanimous with respect to the matter of assisted suicide.

After months of study and deliberation they were unable to agree that the Criminal Code should be amended to remove the prohibition against aiding suicide. I further suggest this lack of unanimity may well reflect the views of many Canadians with respect to the issue. There is great public interest in issues surrounding the end of life. These are issues which every one of us must face. We must bear in mind, however, that there are many perspectives from which to examine these issues, be they medical, legal, social or ethical.

In addition, we must remember these issues are not confined solely to an analysis of assisted suicide or physician assisted suicide.

I would like to take a few moments to provide a brief overview of the analysis of the particular provisions contained in the bill proposed by the hon. member for Burnaby-Kingsway.

Bill C-304 provides that no qualified medical practitioner commits an offence of counselling, aiding or abetting suicide or any other criminal code offence where the practitioner aids a terminally ill person to commit suicide at the request of and with the voluntary consent of that person, with the approval of at least one other qualified practitioner.

Some may think at first glance that this provides concise and sufficient guidelines. I am of the view that if we were to agree at any time that such an amendment is required more work would be necessary to give Canadians the appropriate legal framework within which to reach this kind of decision.

Save for the exception presented in the proposed subsection 241(2), aiding suicide would remain an indictable offence with a maximum of 14 years imprisonment. The circumstances in which the protection would operate must be clear. I suggest that a number of clarifications would be required.

First, the term terminally ill is not defined. There is no generally accepted medical definition for this term, only operative definitions, for example, for placement in palliative care. This would prove problematic.

Second, as set out in Bill C-304 the patient must provide voluntary consent without spelling out what constitutes voluntary consent. One potential difficulty is that there is no requirement that the patient be competent to consent. I suggest by way of example that persons suffering from depression may not be competent and may still provide voluntary consent.

Third, there are no provisions in the bill regarding the situation of the incompetent patient. This was an issue raised during argument in the Rodriguez case before the Supreme Court of Canada, that is how the case of the incompetent patient would be dealt with if competent patients were permitted to request assisted suicide.

Fourth, the bill does not deal specifically with children. Though the general language of the bill would include children, there are no provisions dealing with substituted consent in the bill. Are children who may be able to give valid consent to be permitted to request assisted suicide? If substituted consent is to be provided who may validly give that consent?

Fifth, we are all aware that family and friends of patients are sometimes prevailed upon to assist the patient in dying. As written Bill C-304 would provide no protection even to the most sympathetic cases of this kind. It would provide protection only for those in the status of a physician. While it is not suggested that this is or is not the manner in which the House may decide to deal with the issue, it is important to ensure that when we do so we are cognizant of and discuss all situations where the need to address the question of assisted suicide may arise.

As the Prime Minister has indicated this is a highly complex social and moral issue. Assisted suicide, euthanasia and cessation of treatment are difficult matters for all Canadians. The Senate committee after many months of consultation produced a very thoughtful report which must be considered by everyone concerned with these issues. They were unable to agree on how the matter of assisted suicide should be addressed.

We have been assured by the Prime Minister and the Minister of Justice that it is the intention of government to provide through Parliament at the appropriate time a forum for informed discussion to allow members to consider matters relating to the end of life decisions.

Therefore, while I commend the hon. member for Burnaby-Kingsway for the steps he has taken to see that parliamentarians turn their minds to these issues, in my view it would be inappropriate for members of the House to deal with the amendments proposed in Bill C-304.

[Petitions, February 14th, 1997]

Mr. Speaker, in the second petition the petitioners are requesting that the Prime Minister and the Minister of Health commit to a renewal of the national AIDS strategy prior to its expiry on March 31, 1998 at least at its current level of funding so that Canada can continue its programs in the areas of AIDS prevention, education, support and research.

[Petitions, February 14th, 1997]

Mr. Speaker, pursuant to Standing Order 36 I present two petitions on behalf of the member for Edmonton East.

In the first petition the petitioners call upon Parliament to urge the federal government to join with the provincial governments to make the national highway system upgrading possible.

[Divorce Act, February 14th, 1997]

Our intention in adding these words was to codify the existing case law which currently allows for child support to be ordered where children are over the age of majority, pursuing post-secondary education and where the parents have the ability to support them.

However there were some concerns expressed by the senators that the addition of these new words could have been interpreted more broadly than the current case law. This was not acceptable to some people. As a compromise, the Minister of Justice agreed to remove the words "pursuit of reasonable education" so that the current case law will continue to apply. Through the words "or other cause" the courts will continue to have the discretion to award support for post-secondary education where the children have reached the age of majority and where parents have the financial ability.

Second, Bill C-41 through the introduction of child support guidelines reaffirms the objective that both parents have a joint financial obligation to support their children. However the minister understood the concerns raised by some members of the committee that this objective was no longer apparent since it was removed from the act along with the other provisions which were part of the concept of broad discretion which is currently used in the determination of child support. This broad discretion concept defeated the objectives of the guidelines and as such we needed to remove it from the act.

The minister has always supported the objective that both parents are financially responsible for the needs of their children. This obligation is included in the guidelines but to give it more importance the minister agreed that it be reintegrated in the act to ensure that any guidelines will respect that principle.

The child support guidelines are not in this bill but will be introduced through the regulatory process. The provision on shared custody drew some attention of some senate committee members. They were concerned that it only applied to situations where both parents equally shared the custody of their children. Committee members suggested that the courts should be able to depart from

the table of awards where both parents shared custody of children for 40 per cent of the time.

It should be noted that this was the family law committee's original recommendation which had been changed at the request of many legal organizations across the country who were concerned that this would increase litigation on the more difficult issue of custody and access. We agreed to introduce the provision in the guidelines but we will monitor it closely as with any other provision in the guidelines.

This legislation calls for a review by the Department of Justice to be placed before each House of Parliament within five years. Until then the Department of Justice will closely monitor the implementation of every provision with the provinces and territories through the implementation task force. It will also be seconded by an advisory committee which will provide specialized advice on issues as they arise. If changes to the guidelines are required, we will be able to bring them through relatively quickly given that the guidelines will be introduced through the regulatory process.

We are still aiming to have this bill in effect by May 1, 1997 to coincide with the tax change. I urge all members of this House to again support this bill which will bring such improvement to the area of family law. For over 50 years the current system has been in place and it is time for a change. Six years of study and extensive review by the provinces and by all stakeholders working within the family law system have brought about the proposals that are being brought forward by the minister today.

I wish to thank all of those who have been involved in improving this legislation and making it what it is. That being said, as was indicated, there will be a chance as the changes are implemented to review the bill on a continuous basis so that changes where appropriate can be made. But this is one step forward and another bit of progress by the Minister of Justice. We thank him for his efforts and we thank all those who have participated in this process.

[Divorce Act, February 14th, 1997]

Mr. Speaker, I will not talk about the absence of members from the House but I will address my comments to the members of the Bloc Quebecois and the Liberal Party present.

Most of the stakeholders have put aside their own preferences in favour of the goal of national consistency and co-ordination. There is a clear recognition that the guidelines that have been put in place are a great improvement over the current system. That is recognized by the courts and family law practitioners who are already using the draft guidelines on an advisory basis.

Most provinces are now expected to implement these guidelines, learn from the experience and work together to improve them. The province of Quebec is the only province that has already passed legislation to introduce its own guidelines through regulatory process in order to coincide with the May 1 date.

Bill C-41 will allow these guidelines to also apply to orders made under the Divorce Act. Without Bill C-41 there would be in Quebec two different systems for determining child support orders, one for separation and common law relationships and one for divorce.

This bill is about children. It is about ensuring that their needs are met now and in the future. This bill will help parents come to an agreement more quickly on the issue of child support and thereby reduce conflict.

Finally, Bill C-41 also recognizes that some governments need to continue to focus on enforcement of support orders. New measures are introduced to assist the provinces and territories in this regard.

We have also heard that there are issues other than child support on the minds of many Canadians. Custody and access were raised repeatedly throughout the study of the bill by both Houses. We are not ignoring this issue. We are simply completing the task started six years ago by the federal, provincial and territorial governments. The long awaited child support reforms, custody and access, was the subject of public consultation prepared by the department in 1993. The officials of the justice department have already started to work on this issue through the federal, provincial and territorial law committee.

To reaffirm our commitment to addressing this issue, the Minister of Justice has agreed to move that the government establish a joint House and Senate parliamentary review of custody and access. It is my hope that interested Canadians and stakeholders will take the opportunity to voice their concerns to the parliamentary committee.

We will be making an important first step in finding solutions if we all work together. As you know, Mr. Speaker, two amendments were made to Bill C-41 by the standing Senate committee on social affairs, science and technology. That is why we have the bill before the House again today. I would like to comment on the impact of these amendments to the Divorce Act.

First, some committee members had expressed concerns about the definition of child of the marriage in Bill C-41 which was introduced for the first time in explicit reference to the pursuits of reasonable education-

[Divorce Act, February 14th, 1997]

I ask the House through the Speaker to voice its support again today so that we can begin working on implementing this legislation which will modernize our child support system and protect the needs of children after divorce.

This legislation confirms our promise to put children first, a promise we made when we announced the child support strategy. This strategy was announced in last year's budget by the finance minister. It includes child support guidelines, a change in the tax treatment of child support and the redirecting of all revenues that are generated from such change to poor children. It also improves the enforcement measures. All of these changes are expected to come into force on May 1, 1997.

The child support reforms are a product of six years of collaboration with the provinces and territories through the federal, provincial and territorial family law committee. For six years the provinces and the federal government worked closely together to pool research efforts and moneys to develop a child support formula suited to the Canadian context and based on solid economic research of family expenditures on children.

Bill C-41 is also the product of extensive consultation with all stakeholder groups. At least three separate series of consultations were conducted and hundreds of submissions were received and reviewed. Over 8,000 copies of the federal, provincial and territorial family law committee's original report have been distributed across the country.

All governments and groups have had a significant impact in some way on the guidelines. The result is that no one group is completely satisfied. Each group would have done a number of things differently had it had sole control of the project. However, most of them have put aside their own preferences in favour of the goal of national consistency and co-ordination.

There is a clear recognition that these guidelines are a great improvement over the current system, and it is recognized by the courts and family law practitioners who are already-

[Divorce Act, February 14th, 1997]

Mr. Speaker, it is with pleasure that I am before the House to discuss Bill C-41. The bill is before us again to approve the amendments made by the Senate. The bill received third reading in the House of Commons on November 18, 1996 with your support, and I ask all of you in this House to voice your support again today so we may begin working on implementing this legislation-

[Criminal Code, February 13th, 1997]

Yes, Mr. Speaker, it would be appropriate to refer it to the justice committee. Also, the vote was on division. Is that correct?