Bill C-14 (Historical)

An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying)

This enactment amends the Criminal Code to, among other things,
(a) create exemptions from the offences of culpable homicide, of aiding suicide and of administering a noxious thing, in order to permit medical practitioners and nurse practitioners to provide medical assistance in dying and to permit pharmacists and other persons to assist in the process;
(b) specify the eligibility criteria and the safeguards that must be respected before medical assistance in dying may be provided to a person;
(c) require that medical practitioners and nurse practitioners who receive requests for, and pharmacists who dispense substances in connection with the provision of, medical assist­ance in dying provide information for the purpose of permitting the monitoring of medical assistance in dying, and authorize the Minister of Health to make regulations respecting that information; and
(d) create new offences for failing to comply with the safeguards, for forging or destroying documents related to medical assistance in dying, for failing to provide the required information and for contravening the regulations.
This enactment also makes related amendments to other Acts to ensure that recourse to medical assistance in dying does not result in the loss of a pension under the Pension Act or benefits under the Canadian Forces Members and Veterans Re-establishment and Compensation Act. It amends the Corrections and Conditional Release Act to ensure that no investigation need be conducted under section 19 of that Act in the case of an inmate who receives medical assistance in dying.
This enactment provides for one or more independent reviews relating to requests by mature minors for medical assistance in dying, to advance requests and to requests where mental illness is the sole underlying medical condition.
Lastly, this enactment provides for a parliamentary review of its provisions and of the state of palliative care in Canada to commence at the start of the fifth year following the day on which it receives royal assent.

[Graydon Nicholas]

The way it's open-ended now, if you look at those provisions under this Bill C-14, and if you look at the offences that are created because of this, if you don't notice, if you don't do that, you're subject to a criminal charge, and then of course when you're subject to a criminal charge, you have a right to defend yourself.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Mr. Arvay.

You've obviously been very categorical here this morning with us when you've said essentially—if I'm not putting words in your mouth—that if we as parliamentarians were to pass Bill C-14 in its present form, we would be passing legislation that is unconstitutional. You've said that I think because you've indicated that even Madam Justice Karakatsanis says “we rejected terminally ill” as an approach.

You've argued here that we should leave “grievous and irremediable”, as in the words of the court, for fear that we will undercut what the Supreme Court said through legislation of the kind that's currently before us.

Essentially, you've also said—and here's where I want to ask a question about—that “Carter created a floor and not a ceiling”. I think you meant that Parliament cannot take away rights that are provided in Carter. In other words, if Carter creates a large circle, we can't simply create a subset of that circle. Is that essentially what you're saying in lay terms?

[Graydon Nicholas, Former Lieutenant-Governor of New Brunswick, As an Individual]

Thank you very much. I appreciate the opportunity to be here with honourable members on this matter that is very important to our country as well as here in Ottawa.

I filed my submission, and the three areas I addressed are the sanctity of life, palliative care, and freedom of conscience. I hope you've had a chance to read it; it's limited by your limitation of 750 words.

I want to say first of all that I think it is important to acknowledge two things. One is that I'm here as an aboriginal person. My tribe is Wolastoqiyik from New Brunswick. Maliseet is what the English call us; in French they call us Malécite. In my teachings—from my elders, of course—life is respected in all of its stages. I mention this in my brief. Also I'm here as a Catholic. A principle of our Catholic faith as well is that life is respected in all its stages.

Since I was coming here, a friend of mine gave me a copy of legislation entitled an act to establish Pope John Paul II Day, which was enacted by Parliament and assented to on December 16, 2014, in which Parliament acknowledged the important role that Saint John Paul II played not only in this country but in the world as well.

I want to refer in particular to his “Prayer for Life”. If you don't mind, I'm going to hold on to my eagle feather, Mr. Chairman.

O Mary, bright dawn of the new world,
Mother of the living, to you do we entrust
the cause of life: Look down, O Mother,
upon the vast numbers of babies not
allowed to be born, of the poor whose
lives are made difficult, of men and
women who are victims of brutal
violence, of the elderly and the sick killed
by indifference or out of misguided mercy.
Grant that all who believe in your Son
may proclaim the Gospel of Life with
honesty and love to the people of our
time. Obtain for them the grace to accept
that Gospel as a gift ever new, the joy of
celebrating it with gratitude throughout
their lives and the courage to bear witness
to it resolutely, in order to build, together
with all people of good will, the civilization
of truth and love, to the praise and glory of God,
the Creator and lover of life.

That was on March 25, 1995.

With respect to the issue of palliative care, when two ministers announced Bill C-14, the Minister of Health indicated that there would be some money invested in palliative care. I'll refer honourable members to a study that was done, the report from which was called “Not to be Forgotten: Care of Vulnerable Canadians”. It was done by a parliamentary committee here in 2011. It's an extensive report, a comprehensive report, but I would recommend that at least your researchers look at it, because there's a very strong statement in it about looking at palliative care and making sure that governments uphold this portion. It requires simply an amendment of the Canada Health Act for it to happen. Many people are placed in hospices and other centres and literally wait for their time to die. I know many people, my friends and relatives and family, who have been in that situation. It's important that the government make life as comfortable as possible for these people in the last days of their lives.

The other area I will concentrate on is freedom of conscience. Of course we know it's a fundamental right within our charter.

I remember when this was being debated in 1980. Mind you, I was on the other side; I was advocating for indigenous and aboriginal rights back then throughout our country, making sure that the document would in fact protect our people.

One of the writers of the Universal Declaration of Human Rights was an individual from New Brunswick, Professor Humphrey. Article 18 of that document says that “Everyone has the right to freedom of thought, conscience and religion”. This same phrase, of course, is also repeated in the International Covenant on Civil and Political Rights, again in article 18.

Canada not only acknowledged the existence of these particular declarations, but Canada as a country also signed what's called the optional protocol, which allows a citizen of this particular country to question the decision-making power of Parliament and whether it is in fact fulfilling the obligations under international instruments.

My cousin Sandra Lovelace of course was the first one who took the optional protocol to the United Nations, and she's a senator now. It was about dealing with her identity as an indigenous woman who had lost her rights through marriage to a non-native. Ultimately, Canada was sanctioned by the United Nations, and Canada changed the law in 1985.

I put that on record maybe because as I look at this legislation, I'm not sure if the advisers at the Department of Justice examined this legislation in terms of conscience rights—because there's an absence there—so does it in fact comply with international law? Does it comply with the instruments at the United Nations level? Of course, the Department of Justice has all kinds of experts. I just raise that with the committee, Mr. Chairman, because I think it's something that shouldn't be overlooked. I remember how in the 1980s, when legislation was passed and they would sometimes say, “Okay, hold your nose and let it pass, even if you don't agree with it.”

Conscience is so important and so critical. If you force somebody to do something against their will and they have firm beliefs, what's going to happen to the medical profession? What's going to happen to those institutions that exist and do not wish to participate in this particular arrangement that's going to be enacted by Parliament? Almost everybody is saying that it's inevitable that it's going to pass, but there has to be a reason, and I think parliamentarians should realize that this thing has to be studied. Although they say they'll study it five years from now, you can't wait five years. Circumstances change.

That is what I wanted to put on the record, Mr. Chairman and honourable members, because I understand that all three parties are represented here. I want to thank you very much for allowing me to come here.

I asked to be here because from May 31, 1991, when I was appointed as a provincial court judge, to October of 2014, when I finished my term as lieutenant-governor of the province of New Brunswick, I was in a virtual sphere of silence. As a judge, you can't make comments on public issues, and definitely as a representative of Her Majesty you're not allowed to, so finally, then, I was relieved of this particular burden in October of 2014. I come here today saying that there should be great compassion for people who are ill, suffering, or facing death, but we all should also make their lives comfortable in those last stages.

Thank you very much, Mr. Chairman and members of the committee, for listening to me. I want to wish you well, but I also want to let you know one thing. In my term as lieutenant-governor, I visited schools in New Brunswick. There are certain schools, believe it or not, that pray for parliamentarians and pray for judges every day, because it's part of their school regime. I was impressed. I didn't realize they were doing that.

Even today, as you're meeting here and as you continue your debate, you have people in certain schools in the province of New Brunswick who are praying for you, and prayer is powerful. We need prayer; we need a higher power, and we need a higher authority in order to make just decisions.

Merci beaucoup.

[Joseph Arvay, As an Individual]

Thank you, Mr. Chair and members of the committee, for allowing me to appear before you today.

As the chair indicated, I was the lead counsel in Carter. In that context, I think I probably know better than anybody what this case is about and what it stands for, because I was involved in framing the case. Framing the case means what we decided it was going to be all about, how we pled the case, how the government responded to our pleadings, the evidence presented in the case, the arguments in the case, and the findings in the case.

I can tell you, based on all of that, which I'll elaborate on in the time permitted, that the definition of “grievous and irremediable” in Bill C-14 is clearly inconsistent with the Carter decision, and that in my view, an unquestionable view, it is clearly unconstitutional; and that if the bill is enacted, it will be struck down.

I tell you this not only because of my involvement as lead counsel in Carter. I've been litigating the charter since its very inception—that was 34 years ago—and I probably have more experience litigating the charter than any lawyer in private practice in Canada does, and I've had some notable successes. So when I say that in my view this bill, if the definition of “grievous and irremediable” is left in, is unconstitutional, I say it actually with great confidence.

There are really two issues I want to address in the time I have. One is whether there is anything in the Carter decision that would allow Parliament to enact this bill, insofar as it includes the “reasonably foreseeable” phrase, the meaning of which you all know, as well as the phrase dealing with an “advanced state of irreversible decline”, and, for that matter, “incurable”. I say there is nothing in the Carter decision that allows for these. In fact, there's much in the Carter decision that is inconsistent with these words.

I've handed out a fairly lengthy brief in which I walk through many of these more technical issues, and I'm not going to repeat it in the time I have. I asked the clerk, however, to hand out something to you just now, which I only discovered after I wrote the brief. It is a transcript from the Supreme Court of Canada hearing just last January, when the federal government was asking for an extension of six months in order to allow Parliament more time to enact the law.

You should have it; it's the Supreme Court of Canada case, Lee Carter v. Attorney General of Canada. It is an excerpt of an exchange between Justice Karakatsanis and Rob Frater, the federal government's lawyer, and also Justice Moldaver.

This is very telling, I think. If you go to bottom of page 18, at line 19, Justice Karakatsanis says,

Mr. Frater, can I ask you this: Does your position on the Québec legislation mean that you accept that it complies with Carter? I'm thinking particularly about somebody has to be a la fin de vie whereas in Carter we rejected terminally ill.

That can't be any clearer. The Supreme Court of Canada, in Carter, rejected any requirement that a person be terminally ill. If you go on, there's an exchange between Justice Moldaver and Mr. Frater in which he says that the Quebec legislation is “under-inclusive”. By that he meant that it didn't go as far as Carter required, and this obviously raises serious questions about the constitutionality of the Quebec legislation.

I can tell you the way we pled the case. It was my co-counsel and I who chose the words “grievous and irremediable”; those were our words. We deliberately left out “incurable”, because “incurable” doesn't capture the necessary requirement. We used “grievous and irremediable.”

The government asked what we meant by that. As you see in our brief, we spelled out what we meant by that, and it didn't include “terminal”. Then, in argument before the trial judge, the government lawyer said—and again, this is set out in the brief—that the problem with the plaintiff's definition of “grievous and irremediable” is that it doesn't include “terminal.” The trial judge may have used the word “terminal” a hundred times in her reasons, by reference to other regimes, etc., but she didn't require that a person be terminal in order to avail themselves of physician-assisted dying.

As I said, the Supreme Court of Canada, in its ruling, in its declaration as to who was entitled to physician-assisted dying, didn't limit it to “terminal”. You may say that “reasonably foreseeable” is different from terminal. Well, it's not different from terminal; it's just that there are different ways of defining terminal. Some people define terminal in an arbitrary way as six months from the end of life”. Other people define it in a vague way, such as “at the end of life”, as in the Quebec legislation.

This bill defines it in a similar way, but it's all to the same effect. It's imposing “terminal”, and that's simply contrary to Carter. The reason it's unconstitutional is that by defining those entitled to physician-assisted dying—I guess it's supposed to be called “MAID” today, medical aid in dying, and that's fine—Parliament has excluded an entire group of individuals who otherwise would enjoy the charter rights that the Supreme Court of Canada gave in Carter, and that group is the physically disabled, whose death is not reasonably foreseeable.

In the few minutes I have left, I want to tell you—and I've set this out in my brief in some detail—that as a physically disabled man, I was very sensitive and alive to the arguments made by the disabled rights organizations, organizations whose cause I ordinarily support, but on this point I thought they were just fundamentally wrong, insofar as they suggested that all physically disabled people are not really disabled. You're going to hear from Ms. Pothier and Mr. Baker. If they don't use the term “the social model of disability”, I can tell you that their entire premise before the trial court and the Supreme Court of Canada is that we're not really disabled; we're just impaired, and that society disables us because we live in a city where there are stairs to the buildings or in which ableist society has its own notion of what a dignified life is.

I accept that there's no one conception of a dignified life, but I reject the idea that people with serious medical illnesses or conditions, whatever the cause, are capable of suffering intolerably and capable of saying that this is not a dignified life, even if most disabled people conquer their disabilities and accept that what they have to do to get through the day is not undignified. The premise of Bill C-14, insofar as it has this reasonable foreseeability clause, is that most disabled people, all whose death is not foreseeable, are somehow incapable of making an informed decision about whether or not to seek assistance in death.

I've already read—and you will hear again—that the reason for this, they say, is that the disability could be transitional, situational, or transitory, and if you let a disabled person choose death, they might regret it later. You have to try to get your head around that. The trial judge heard all those arguments and rejected them. The idea that a disability may be transitional, transitory, or situational is something that the disabled groups put to the Supreme Court of Canada. The Supreme Court of Canada rejected that, yet this bill essentially provides that all disabled people are simply taken out of the protection of rights that the Supreme Court of Canada gave them in Carter. Parliament can't do that.

Parliament can't do that by claiming that it's a section 1 justification. Section 1 was fully argued in the Carter case. Carter created a floor of constitutional rights and entitlement, not a ceiling. Parliament can provide further rights and entitlements, and the courts can provide further rights and entitlements, but Parliament can't take away any of the rights and entitlements that the Supreme Court of Canada gave to the disabled. Bill C-14 actually carves right out of the Carter decision the rights given to the physically disabled, and it can't do that.

I see that my time is up. I'm obviously open to questions.

Thank you.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Right.

We understand at the federal level, and specifically for Bill C-14, that it is an amendment to the Criminal Code, which is what we have jurisdiction over. The administration of MAID would be something that would be implemented by the provinces.

All three witnesses can comment on the following. Do you think the provinces would be able to come up with a consistent approach, specifically the self-regulation of doctors? For those physicians or medical practitioners who do not want to partake in the administration of death, would the self-regulated bodies be able to take ownership of that piece and ensure that everybody's conscience rights are protected?

[Murray Rankin, NDP, Victoria, BC]

With your analogy to a small circle versus a large circle, you're saying that Bill C-14 covers a small circle. I don't want to put words in your mouth, but the Supreme Court intended a larger circle, and they simply didn't get it right in this law. Is that your submission?

[Jay Cameron]

We say this is an unusual situation. It's important not to miss that what's happening here is the carving out of an exemption for culpable homicide. Because Parliament is carving out that exemption, we say Parliament can set the parameters with respect to who is instituting MAID and how it's being instituted.

We say the 15-day waiting period, for example, would be constitutional, because that is within the boundary of that exemption that's being carved out. We say it doesn't trench on the provincial powers. We say it's necessarily incidental for the exemption that's being carved out.

We know that the Supreme Court of Canada has given that mandate to Parliament. The expectation, when I read Carter, is that the court expects Bill C-14 to balance those rights, and that is what is conspicuously missing. We say there's nothing wrong with putting that protection in the Criminal Code power—namely, under the Criminal Code power in section 91 of the Constitution Act, 1867.

[Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms]

Ladies and gentlemen, thank you very much for having me here tonight. I'm here on behalf of the Justice Centre for Constitutional Freedoms, which is a non-partisan, non-religious charitable organization. Our emphasis is focusing on the charter rights of Canadians, with a special emphasis on the charter rights found in section 2.

I'll start by complimenting the attorney general on Bill C-14, because I think there's much in it that's commendable. While I'm here tonight to talk about conscience rights specifically, I think it's important, given what I've heard here so far tonight, to mention that we believe that Bill C-14 gets a number of things right. It keeps accessibility to this to people who are adults. It keeps the decision with respect to access made for those who are competent at the time of making the decision. We think it gets right that an individual needs a physical ailment and that a person must be mentally sound.

A timely report was released today by what was formerly known as the British Medical Journal. It's now called the BMJ. It was released today. It's been reported on internationally. What it said was that medical error is the third-leading cause of death in the United States. I just want this committee to think about what that means. That means that the medical community, when they're attempting to save somebody's life and prolonging health, kills almost as many people—the third-leading cause of death—as cancer and heart disease in the United States. The system of reporting deaths in Canada, the U.S., and the U.K. relies on what's known as a mortality coding system. It doesn't capture death from medical failure, so it's unknown exactly how many people are being killed accidentally in Canada by the medical community.

My point in referencing that is simply this: mistakes happen, and there are people who are vulnerable in this country who need to be protected. It's apparent that they need to be protected from the very people who are being given licence right now to assist a person to die. It's with great solemnity, I think, that this issue comes before this committee.

The court in Carter said that “Complex regulatory regimes are better created by Parliament than by the courts.” It was in the context of noting the need for legislative reform to allow for medical assistance in dying that the court discussed and reiterated the conscience and religious rights of medical practitioners, stating that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” That's at paragraph 132. Instead the court underlined that “The Charter rights of patients and physicians will need to be reconciled...”. It was within the rubric of reconciling those rights that the court in Carter suggested statutory balancing, statutory address. Unfortunately, Bill C-14 fails to do that.

It's our continued recommendation that, in order to comply with Carter, Bill C-14 should codify the protections for the conscience rights of physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, to refuse to participate in and refuse to refer for MAID.

The applicants in Carter neither sought nor received a charter right to compel doctors or health care workers to provide or refer for MAID. Despite that fact, the colleges of physicians as well as nurses' associations have instituted requirements that their respective members participate in MAID in disregard of members' conscience rights, on pain of professional sanction and reprisal in some cases. This is Parliament's opportunity to bring uniformity and clarity to the issue of conscience rights, and was made for that reason.

I have two pragmatic reasons in addition to the reasons that were set forward before the subcommittee. First of all, tens of thousands of Canadians trust and rely daily on medical practitioners to perform their duties in an ethical and conscientious manner in the provision of service. The provincial colleges of physicians have ethical requirements for doctors, and they expect physicians to be governed by a strong sense of moral and ethical responsibility.

We say that this committee has to consider the ramifications of overriding a physician's conscience in one aspect of service and then expecting that same physician to act in a conscientious or ethical manner in all of these other service requirements.

We also say it's important for Parliament to recognize that what Carter was talking about was a balancing of rights. There is a right to die recognized in Carter, but there are also rights for medical practitioners. It's important not to lose sight of the forest for the trees. The people who under this current Bill C-14 will be implementing MAID are the people who will wake up tomorrow morning, look themselves in the eye, continue on with their daily business, and know that they performed their duties in an ethical and conscientious manner. The people who have availed themselves of MAID will be gone, but the medical practitioners will still be here.

In my respectful submission—I don't mean to be trite—is it a proper balancing, looking at somebody's life on the verge of expiring, weighed against the decades of medical practitioners who still, on a day-to-day basis, must act in a conscientious and ethical manner? Is it not disproportionate to focus solely, or almost exclusively, on the rights of patients as opposed to those who are tasked with implementing MAID?

We say it is. We say a proper balancing would never oblige an individual to participate in MAID. There have been lots of discussions about whether or not it's legal or constitutional to include a protection in Bill C-14 for conscience rights. We say it is.

First of all, it is clear that right now Bill C-14 is dictating how MAID can be implemented and who can implement it. It is making regulations. It is making laws, or it purports to make laws, with respect to how MAID is to be carried out in the province. If the province is the sole entity that can make laws with respect to MAID, then this legislation would be offside. It's clear that this is not the case. We say it's apparent that conscience rights can be protected.

I would direct your attention to the circumstances in this example, one out of a number that we've thought of. Of course, the general rule with respect to culpable homicide is that there's no killing. It's sort of similar to the general rule that if you are a Canadian individual or organization, you have to pay taxes, because federal taxes are the purview of Parliament. Charities are controlled by the provinces, under section 92 of the Constitution Act, 1867, and yet charitable organizations have to make application to the federal government to both obtain charitable status and continue it. The reason that's the case is that otherwise they would not be allowed to do what they are allowed to do, which is accept tax-exempt donations.

In summation, I'll say that there are other analogous circumstances, such as in the Civil Marriage Act, where there are enumerated protections for conscience rights. We say it would be a mistake not to codify the same in this legislation.

Thank you.

[Sikander Hashmi, Spokesperson, Canadian Council of Imams]

Thank you very much, Mr. Chair.

Good evening, everyone. I'd like to extend our thanks to each of you for all the long hours that you've put in here doing some very important work for us. Thank you very much.

In the Islamic faith tradition, neither euthanasia nor assisted suicide is supported or encouraged. However, since that matter has already been decided by the Supreme Court, our concerns and recommendations regarding Bill C-14 centre around three things: safeguarding the interests of patients in distress, minimizing errors, and conscience protection for health care providers and faith-based facilities.

Most Canadians would agree that life is sacred and that an effort should be made in most if not all circumstances to preserve it. The Koran highlights the importance of saving a life. In verse 5:32 it says: “Whosoever saves a life, it is as if they had saved humanity entirely.” Undoubtedly, the issue of assisted dying is of concern to many Canadians. Canadians are caring people. When we see others in pain and distress, we want to help.

Muslim faith leaders, along with those of other faiths, have a long tradition of caring for the ill. We have witnessed first-hand the terrible toll that illnesses and pain can take on patients and their families. We understand that in some cases, patients experiencing extreme levels of pain and suffering and those expecting the same in the future may desire an end to their life. We empathize with them, and as we draw from our faith traditions, we are instructed to pray for them to gain relief from their suffering and to try our best to make them comfortable by providing the best possible care.

We also know that when a human being voluntarily seeks an end to their life, it is a testament to the extreme pain and distress that they are experiencing or that they are fearing. It is a cry for help.

Whenever an individual seeks to end their life, we as a society know not to grant them their wish. Rather, we offer them compassionate care and assistance with the aim of alleviating the pain and distress that they're experiencing. We never assist them in ending their lives and instead make efforts to dissuade them from doing so.

Requests for death due to pain and distress caused by illnesses or disabilities should be dealt with in a similar manner.

We therefore recommend: first, that under safeguards, Bill C-14 require medical practitioners to ensure that after making a request for assisted death, patients are met by an end-of-life care team consisting of a psychiatrist, a social worker, and, if the patient so wishes, a spiritual care provider; second, that members of the end-of-life care team be required to discuss with patients the reasons for the request and present all available care options to ensure that patients are voluntarily making informed decisions; third, that the end-of-life care team and the medical practitioner confirm that all available treatments and pain reduction techniques have been exhausted and that they have not been able to make the suffering tolerable for the patient under conditions that they consider acceptable.

While Bill C-14 offers some safeguards, we believe there should also be measures in place to ensure that patients and the vulnerable are protected from errors that could have serious consequences. We therefore also recommend that the ability to provide assistance in dying, including access to substances that cause death, be limited to specially trained and certified health care practitioners authorized by the Minister of Health and the Minister of Justice.

This would entail modifying the text of the bill by adding the phrase, “authorized by the Minister of Health and the Minister of Justice” after all references to medical practitioner or nurse practitioner when referring to those permitted to provide assistance in dying.

We are also very concerned about the protection of conscience rights of health care providers and faith-based facilities. Conscience rights should be given the same level of importance as the patient's right to seek assistance in dying. In our view, the level of disengagement from assisted death should be at the discretion of individual health care providers and faith-based care facilities and should be publicly disclosed to would-be patients. This should be specified in the bill.

We firmly believe that as Canadians we must do more to provide compassionate care to those who are ill and to find better and more effective ways to alleviate their suffering and improve their quality of life. We believe it is possible for the federal and provincial governments to respect the Carter decision while promoting the sanctity and value of life.

Instead of encouraging death, let us come together to enhance and cherish life. Thank you very much.

[Prof. Jocelyn Downie, Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual]

Good evening, and thank you for the opportunity to testify before you tonight.

In the time available to me I will not praise the bill, despite the fact there is indeed much to praise in it. I'll instead focus on suggestions for changes to the bill.

The reasons for these suggestions are that Bill C-14 is inconsistent with the Supreme Court of Canada's decision in Carter v. Canada. That is, it is inconsistent with the Canadian Charter of Rights and Freedoms for individuals who meet the Carter criteria. Bill C-14 is also inconsistent with the charter in relation to mature minors, individuals with mental illness, and requests made in advance of loss of capacity.

Unless Bill C-14 is amended, many individuals experiencing enduring and intolerable suffering from grievous and irremediable conditions will be left with three options. They can take their own life prematurely, often by violent or dangerous means; they can stop eating until death by starvation is not too remote or in the not too distant future, such that they will then qualify for assisted death; or they can suffer until they die from natural causes. This is a profoundly and unconscionably cruel choice.

Proposed subsection 241.2(2) unjustifiably limits access to medical assistance in dying. There are a number of problems here. First, contrary to the government's assertions, Kay Carter of Carter v. Canada would meet the Supreme Court of Canada's criteria for access, and yet would not meet the bill's criterion of a reasonably foreseeable natural death. Kay Carter had spinal stenosis. This is not a life-limiting or terminal condition.

There is no indication in it's decision that the Supreme Court of Canada thought that Kay Carter's natural death had become reasonably foreseeable in terms of temporal proximity. There was no evidence on the record before the court that Kay Carter's death was reasonably foreseeable in any temporally proximate way. In fact, it was just the opposite.

To pick but one of many possible examples from the evidence before the court, as Kay Carter wrote in her letter to Dignitas clinic in Forch, Switzerland:

The neurologist, Dr. Cameron of North Vancouver, assessed me and I had a CAT scan and MRI done. From these tests he told me that I had an ongoing, slow deterioration of the nerves that would never kill me but eventually would reduce me to lie flat in a bed and never move.

Second, the government's position on Kay Carter, mental illness, major physical disability, and Bill C-14 is incoherent. The government has no evidence upon which to conclude that Kay Carter's death was not too remote, apart from the fact that she was old. On the logic of its position, if someone has a non-life-threatening mental illness or major physical disability as their sole condition, as long as they are old, they will be eligible. Yet this is precisely what the government is trying to prevent with proposed paragraph 241.2(2)(d). So either Kay Carter didn't meet 241.2(2)(d), or Bill C-14 allows access to medical assistance in dying for individuals whose sole condition is a non-life-threatening mental illness or major physical disability. The government is trying, but they cannot have it both ways.

Third, the phrase “reasonably foreseeable” is untenable as a criterion for access. “Reasonably foreseeable” is impermissibly vague. The debate about whether Kay Carter herself would meet this criterion makes this point crystal clear. The government's suggestion that “reasonably foreseeable” be interpreted as “in the not too distant future” or “not too remote” flies in the face of common usage where it means predictability, not temporal proximity.

Contrary to claims made by the government, the meaning proposed for “reasonably foreseeable” in the government's glossary and public remarks is not consistent with the meaning of “reasonably foreseeable” in either the criminal law or tort law where it means predictability, rather than temporal proximity. That is, it means you can “foresee that” rather than “foresee when”.

I'll now turn to my proposed solution.

First, delete proposed subsection 241.2(2). Second, add “including an illness, disease or disability that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” to proposed paragraph 241.2(1)(c). Third, add the following definition: “Irremediable” means “cannot be alleviated by means acceptable to the person”. Fourth, replace references to “reasonably foreseeable” elsewhere in the act.

Now I'll move to my second issue, namely, the exclusion of mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. It is important to note that the government has acknowledged that Bill C-14 limits the charter rights, specifically by excluding mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. However, it has failed to provide parliamentarians with any reasonable basis on which to conclude that these limits are, for section 7 rights, in accordance with the principles of fundamental justice, or for both the sections 7 and 15 rights, demonstrably justified in a free and democratic society. In other words, you have not been given anything solid upon which to base a conclusion that this bill does not violate the charter.

The government provided a legislative background document to explain why it has concluded that Bill C-14 is consistent with the charter. However, this document's justifications for limiting the rights are grossly inadequate. The document's weaknesses include the following: misrepresentation of legislation in the permissive jurisdictions; misrepresentation of data from the permissive jurisdictions; reliance on unreliable sources of evidence for claims about the permissive jurisdictions; reliance on an ethical distinction explicitly rejected by Justice Smith in Carter; reliance on assumptions that are fundamentally inconsistent with the advance directives legislation in place in provinces and territories across this country; and reliance on a staggeringly unbalanced set of experts.

Contrast it with two other significant documents that are available to help guide you in your decision-making, the report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, and the report of the Special Joint Committee on Physician-Assisted Dying. Given that they do not share any of the legislative background's weaknesses, I would argue that it is more reasonable for you to rely on them than on the legislative background document, and I would remind you that they both recommend against excluding mature minors, individuals whose sole grievous and irremediable condition is a mental illness, and advance requests.

As for solutions, I think the best solution here would be for you to make amendments to Bill C-14 to make it consistent with the recommendations of the provincial-territorial expert group and the special joint committee, and thereby the charter.

The second-best solution would be for you to have the provisions just mentioned, but have them come into force two years after the act receives royal assent, giving time for the development of policies and procedures and education of health care professionals and the public. However, note that this relates to how, not whether, to include these elements.

As an absolute bare minimum, I would argue that you should delete the preamble's reference to a commitment with no deadline for an exploration of the contested issues of mature minors, advance requests, and requests where mental illness is the sole underlying medical condition. Add a statutory mandate that is in the body of the act for independent expert studies of the contested issues with a prescribed and short deadline—for instance, 18 months—for reporting back to Parliament.

A mere preamble reference to a commitment to do reports on these three pressing issues is too weak when charter rights are being limited and the only question is whether the limits can be justified. Real people suffering in agony will have their charter rights limited every day until the government commissions the studies and then reports back to Parliament. They deserve more than Bill C-14 provides.

Thank you.

[Bruce Clemenger]

I was referring to the “whereas” and then the broader context of what the regime the government is planning to set up in the context of Bill C-14. That's what gives us a concern.

Also, we have a live example of the College of Physicians and Surgeons of Ontario, which is right now requiring effective referral, which is deeply contrary to the religious conscience and beliefs of many doctors. They need protection.

[Bruce Clemenger]

We believe it needs to be amended now, before it is passed, to make clear protection of conscience for both doctors and medical personnel, and also institutions that provide extended care on whose premises someone may request assisted death, should a law pass.

Again, as I said in my comments, the minister did clarify that nothing in the bill says the doctor will be obliged to. However, you look at the “whereas” statements, it's clear that they're creating a regime around Bill C-14 that will deem medically assisted death as medically necessary. Once you create that paradigm, then, in a sense, you're taking what I don't think Carter established: a right to access. It was an exemption from the application of the Criminal Code. If you begin interpreting and framing it as a right to access, then there's an obligation to provide.

The clear example would be the College of Physicians and Surgeons of Ontario, which already requires an effective referral under the current regime while the bill is being suspended for the next four months.

We think it needs to be placed. We think there needs to be a statement in the “whereas” section, clarifying that no one will be compelled to participate contrary to their conscience or beliefs. We think there could be—and you've heard this before—a parallel paragraph inserted in Bill C-14 along the lines of section 3.1 in the Civil Marriage Act to protect it. Also, there have been some proposals—and I know they've been submitted to this committee—that clarify and define Criminal Code provisions against coercion.

[Dr. Gary Bauslaugh, Free Lance Writer, As an Individual]

Thank you, Mr. Chair and members, for having me speak to you today.

I'm going to speak about an issue that could potentially affect the lives of thousands of Canadians. I'll be speaking specifically about the reasonably foreseeable clause and taking the position that was mentioned by colleagues here, that it's not necessary and is problematic.

My hope and the hope of many other Canadians is that the new legislation will prevent situations like that of Sue Rodriguez, who in 1993 was refused permission to get assistance in dying even though she was facing a situation she could not bear to live with, the prospect of long-term and almost total paralysis. Once paralysed she would be unable to do anything to end her own life, which of course would have been perfectly legal. Suicide is legal in Canada, of course, but she was legally prohibited from getting assistance with this legal act.

She did eventually get help from an unknown sympathetic doctor who risked his or her own freedom to save Rodriguez from the grim fate the law said she just had to endure. This is not good enough for a civilized country. Many of us thought that Bill C-14 would help people like Sue Rodriguez and others who find themselves, to use the Supreme Court terminology, with a “grievous and irremediable medical condition”, or to put it in other words, we hoped that the new legislation would be the solution for people in a condition of unrelenting, inescapable misery.

Unfortunately, Bill C-14 would not have helped Sue Rodriguez. This is because of proposed paragraph 242.2(2)(d), which specifies that in order to be eligible for medical assistance in dying, natural death must have become “reasonably foreseeable”. Presumably whatever this means, it must mean something to do with death being imminent. Death was not imminent for Sue Rodriguez. She might have gone on living for years trapped in her paralyzed state.

A similar conclusion about the bill was arrived at by the family of Kay Carter, who was a central figure in the B.C. Supreme Court case that led to the unanimous ruling of the Supreme Court of Canada to strike down our assisted suicide law. Kay Carter was not about to die naturally when she went to Switzerland to get aid in dying, yet her case was at the heart of the decision of the courts. Surely now denying assistance in dying to people like Kay Carter would be a violation of the spirit of the decision of the courts.

Of course, there would be other consequences of the reasonably foreseeable clause. Some people would be forced to go on living in a state of grievous and irremediable suffering. Those with money would simply go to Switzerland. Those without money would simply be out of luck. Some of the unlucky ones would choose very grizzly means of dying, such as shooting themselves, jumping off a high place, or starving themselves. Some attempts at suicide, such as taking an overdose of some drug, may fail, possibly leaving people in worse shape than before.

We can anticipate new charter challenges on this reasonably foreseeable clause if the bill stays as written. But if Rodriguez and Carter would not have been helped by Bill C-14, I began to wonder who would be.

My recent book, The Right to Die, catalogues all the major assisted death cases in Canada since 1941. There were 35 for which a reasonable assessment could be made. Most of the individuals involved in those cases, like Sue Rodriguez and Kay Carter, would not have been helped by Bill C-14. Of the 35 cases, 27 or 77% would not have been helped by Bill C-14. Of those 27, by far the largest number, 19, would likely be excluded by the reasonably foreseeable clause. This is shown in the table that I handed out earlier, where cases are all listed with an assessment of how each might or might not have been affected by the new law.

Thus we have a bill that does not help most of the people who need such help. The main reason is the reasonably foreseeable clause, as judged by my analysis of real Canadian cases. It does not help those who actually need help most. Why do I say that? If a person is about to die anyway, helping them along can indeed be an act of kindness, but with death imminent anyway, their relief from suffering is limited to the short period of time left. It is surely an even greater kindness to provide wished-for assistance in dying to those with grievous and irremediable suffering that might go on for years.

There are other issues one could take up with Bill C-14, for example, the matters of mature minors and mental illness, which have been talked about a lot today. However, these are rare. No examples came up in my survey of Canadian cases. Moreover, the issue of advance directives is an important one. It came up four times out of 35 cases in my analysis. It is a complex issue, and I don't argue with the bill's treading cautiously here.

The reasonably foreseeable clause, however, is a very big problem. It seriously limits the good we can do with this legislation. The bill is about granting mercy to the suffering. Is there any good reason why such mercy should be a rationed commodity? Why should our compassion be limited to those are on the verge of dying? All of those—not just those who are about to die but all of those—in a condition of grievous and irremediable suffering, in a state of misery that cannot be fixed, deserve to have their wishes respected. All of them should have access to assistance in dying.

Thank you.

[Richard Fowler, Canadian Council of Criminal Defence Lawyers]

Thank you for this opportunity.

As this committee appreciates, from hearing the many presentations, medical assistance in dying is and will likely remain a subject that deeply divides people, based on ethical, moral, and religious beliefs. It is because of this that those medical and nurse practitioners who choose to provide medical assistance in dying—and I emphasize the word “choose”, because it's their choice—will, not surprisingly, find their actions carefully scrutinized to ensure compliance with the law. I wish to briefly explain how the law, as presently drafted, fails to protect medical and nurse practitioners who, acting in good faith, make mistakes in providing medical assistance in dying. In other words, what could happen to a doctor or nurse who fails to appropriately apply all the safeguards? Bill C-14 essentially sets out an exemption for what would otherwise be a culpable homicide—and that has to be emphasized—more specifically, first degree murder, an illegal act intended to cause death, which did cause death, and was planned and deliberate. Proposed subsection 227(1) of the act provides that a medical or nurse practitioner does not commit a culpable homicide if they provide medical assistance in dying in accordance with proposed section 241.2 of the Criminal Code.

In other words, failing to comply with all of the safeguards and other provisions in proposed section 241.2 would, potentially, leave a doctor or nurse liable to being prosecuted for a culpable homicide. The only logical culpable homicide would be first degree murder, which as you all know, has a minimum life sentence and minimum parole ineligibility of 25 years. So, that's what they have hanging over their heads, as it stands at the moment, with one exception, which I'll come to in a moment, if they get it wrong in good faith.

You have all seen and been referred to the eligibility requirements and safeguards. They are rightly stringent, but they also include matters over which different people, different doctors and nurses, might disagree, particularly, for example, on questions of whether death is reasonably foreseeable. You heard, I think, earlier today a doctor talk about the fact that foreseeability of a death is something that doctors can disagree about. It is because the safeguards are so stringent that it is easy to see how a doctor or nurse might make an honest error.

For example, a request for medical assistance in dying must be signed and dated before two independent witnesses. Proposed subsection 241.2(5) defines who is or is not independent. For example, a person is not independent if they are a beneficiary under the will or a recipient in any other way of financial or other material benefit resulting from the person's death. It is the doctor's or nurse practitioner's responsibility to make the evaluation of independence. What steps must they take? What degree of inquiry must they make to fulfill this requirement? Do they need to go looking for the will? Do they need to speak to the person who is seeking to die? What level of inquiry is necessary to determine independence? If it later turns out that one or both of the witnesses were not independent, the only defence available to the doctor or nurse would be that their mistake was reasonable. Proposed subsection 227(3) of the act provides a defence if a person makes a reasonable mistake in respect of any fact that is an element of the exemption. In other words “reasonable” means by some objective standard, standards that we don't yet know. You've heard that from other people, because this legislation hasn't come into force. A doctor or nurse who had made a mistake, who acted unreasonably but honestly, in that they believed what they were doing was correct, would not be able to avail themselves of that defence in proposed subsection 227(3). It's what we call in law the difference between a reasonable mistake and an honest mistake. One is objective and one is subjective. A person who makes an honest mistake can still be liable to be prosecuted for murder. They act in good faith but they make an honest mistake.

It is our submission that limiting the defence in proposed subsection 227(3) to only reasonable mistakes rather than honest mistakes—a distinction that is very meaningful in the criminal law—is wrong and potentially unconstitutional, particularly with regard to any prosecution for murder, because, as I'm sure many people here will appreciate, you can only be convicted of murder if you have the appropriate subjective state of mind. It's not measured by any objective standard. However, this exemption is measured entirely by objective standards.

It is our submission that proposed subsection 227(3) should be amended to read:

For greater certainty, the exemption set out in subsection (1) or (2) applies even if the person invoking it has an honest but mistaken belief about any fact that is an element of the exemption.

Thank you.

[Greg DelBigio, Canadian Council of Criminal Defence Lawyers]

Thank you very much.

The CCCDL was formed in 1992. It has executive representation coast to coast to coast. We are very pleased to have been invited to be here to assist this committee in respect of this important legislative proposal.

Mr. Fowler and I will both be presenting. We are both practising lawyers in Vancouver. I'll make preliminary remarks, and Mr. Fowler will follow. We'll address legal and constitutional issues rather than issues that relate to beliefs and policy.

The Supreme Court of Canada decision in Carter began what is sometimes described in the law as a dialogue between the courts and Parliament. Now, to be constitutional, Bill C-14 must conform to what Carter addressed. Carter defined minimum requirements. Future litigation, I would urge, is to be avoided. It's expensive, it's time-consuming, and it is unfair to those who might avail themselves of this legislation.

The Supreme Court of Canada ruled, and that presents Parliament with options. Option number one is to do nothing. Of course, then, if nothing is done, the legislation will fall, and then there's a legislative void. Option number two is to enact law in accordance with Carter. Option number three is to enact a law that goes beyond what Carter says and what Carter addressed, for example, mature minors. It's my position that it is an example of an issue that is beyond Carter. It doesn't mean that it cannot be included, constitutionally or lawfully included, but it's not necessary to include.

The language that you choose can suffer from legal defects in one of two ways. One is over-breadth, as was addressed in Carter, and that is if the law captures more than is necessary to achieve constitutional objectives. A second way in which language can become legally defective or constitutionally defective is if it is vague. I suggest that, as you're contemplating language to address any of these provisions, you ask yourselves if there a common meaning. Is there a usual meaning? We heard discussion earlier that there may be an agreed-upon meaning within certain medical spheres. Ultimately, though, the meaning of a law is going to be up to a court, and it has to be sufficiently precise that it lends itself to interpretation by the courts.

The issue in Carter was whether it a crime to assist another in ending his or her life. The language of Carter, the constitutional language that resulted in the court striking the legislation, was based upon autonomy, dignity, and the need to protect the vulnerable. The conclusion was that “the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where” they give clear consent and have “a grievous and irremediable medical condition”. It is our position that the inclusion of the language of “natural death has become reasonably foreseeable” was not contemplated by Carter. It is a restriction, and, again, Carter addressed restrictions. The reason that the legislation fell is because the restrictions were inconsistent with the autonomy. I suggest to you that it is not necessary to include that limiting language.

More importantly, there are two further concerns. The inclusion of that language might give rise to challenges based upon issues of vagueness. What does it mean? Is there an agreed-upon meaning? Can that meaning be properly understood? Because it is a limitation, it might well invite further litigation, and that, I suggest, is to be avoided.