Foreign Affairs Committee on Feb. 27th, 2019

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Maybe I can piece it to that.

Look, the concern was—and I felt prosecutorial discretion was sufficient to address this—that there may be some ambiguity around somebody getting expenses covered in the context of receiving an organ donation. Someone is travelling to another place and receiving an organ that is being donated to them, but that person receives.... Let's say they have hotel and travel expenses paid for them as part of that process of organ donation. Could that be misunderstood as doing it for consideration?

It seems to me they're not doing it for consideration in that case, very clearly. They're donating it and getting expenses covered. But the question was: Could we further clarify this clause to ensure that it would not catch people in the net who are receiving organs from somebody who is getting expenses and so forth covered?

[Nathalie Levman]

I agree that “for consideration” would likely not cover reimbursement of expenses. That language is contract language. What it means is that a person exchanges something for something else. Reimbursing expenses wouldn't fall within that category, in my view, although I'm not a contract law expert; I'm more focused on criminal law. But I do deal with another provision that uses language like that.

The other issue is the term “exploitation”, which is a very subjective term. People have different ideas of what that means, especially in contexts involving vulnerable people. So, you might want to consider that language.

[The Chair]

MP MacGregor, please.

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

Thank you.

I also have a question for Ms. Levman. I'm using some notes from my colleague, who is the regular member of this committee.

If consent regardless of the circumstances in which it is given is ineffective in contexts such as sexual assault and human trafficking, do you think the treatment of consent in the context of organ trafficking should be different or should be in line with those?

[Nathalie Levman]

I'm not sure I understand exactly. In the trafficking provisions, it specifically states that victim consent is irrelevant. It's a basic principle of criminal law that, if you are exploited, and by that I mean according to the definition in section 279.04, even if you consented to the conditions that created your exploitation, that doesn't make it not a criminal offence. It's still a criminal offence.

Could you clarify what your concern is about consent?

[Alistair MacGregor, NDP, Cowichan—Malahat—Langford, BC]

There has obviously been some concern raised over.... You said “exploitation” is a subjective term. I'm just trying to add my thoughts on how we clean this clause up.

[The Chair]

MP Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

Ms. Levman, I had some concerns about the way this was written, and I used a very simple but I think very profound example. I immigrated here from India. I have a large family back home and a very small family here. I think that speaks to millions of Canadians who have immigrated here from parts of the world where large families are the norm.

If someone from here returned to their country of origin and they received an organ, legitimately, from a family member, whether it be a first cousin, second cousin, third cousin, uncle, aunt, or whomever.... Obviously, as you can appreciate, in certain jurisdictions around the world the health care system is not as robust as ours, so they would have to go into the private system to have an organ transplant surgery done.

In that case, if a family member donates an organ to you, and you obviously covered the medical expenses required for that surgery, how would that process be impacted by what is here?

[Nathalie Levman]

These are very interesting factual situations. Of course, a court would have to consider all the facts of the case. If a case like this were to come before the court, and the court were to consider what amounts of money—let's say it's money—were paid in that situation, and determined that it was merely to reimburse those expenses, then my previous comments would hold. I don't believe a court would interpret that as obtaining for consideration.

If one were to pay an exorbitant amount and say it was to reimburse expenses and the court found that it was for more than the actual expenses, a court might pierce the veil, so to speak, and find that, no, in fact, this was an amount paid for the organ. This particular offence, as currently drafted, does cover situations where someone merely purchases an organ, regardless of whether the person who sold it consented, meaning even if they consented, as long as they received any kind of a benefit or consideration for it, the offence would apply.

[The Chair]

If I can just interject, I want to pose something else to you.

The Istanbul Protocol, which has been referenced here and is where the exploitation language came from, does reference a number of scenarios where money can change hands. These include paying the donor of the organ for lost wages, medical expenses and medications. A number of items are listed that would be deemed excluded, which I suppose is the intent of the exploitation language there.

What are your thoughts on addressing that list of possible reasons that money might change hands, none of which go to the root of the exploitation category?

[Nathalie Levman]

As I've said, I do think “obtain for consideration” has a meaning in law, and that reimbursement of legitimate medical expenses would not be captured by that phrase.

I would like to point out that the Istanbul declaration and other health-related instruments really are focusing on the non-commercialization principle which we have in Canada in all of the human tissue gift acts. There is consensus that organs should not be commodified or commercialized internationally. Where there isn't consensus is on this type of offence, and where you extend extraterritorial jurisdiction over people—sick people—who go abroad to purchase life-saving organs from people they believe are consenting.

On that issue, it's criminal law, meaning that it's not a fine or a general civil ban; it's incarcerating people upon their return from receiving an organ, while they're healing. There isn't consensus on that, not even in the criminal treaties we have. The Council of Europe treaty specifically leaves it to independent states to determine whether or not they're going to extend their criminal law in that way. It's my understanding that only a very few countries, a handful, actually use the criminal law to address transplant tourism.

[The Chair]

Thank you very much.

MP Saini.

[Raj Saini, Liberal, Kitchener Centre, ON]

Ms. Levman, just to make this clear, I gave you a unique example. The reason I don't want to broaden this out is that I think it really would affect a lot of people. From what I understand, you're telling me that if someone were to return to this country, they would not be captured under this legislation.

[Nathalie Levman]

We're assuming that the person went abroad, had an organ transplant there with a family member, reimbursed expenses at a reasonable rate and returned home. We're also pretending that this offence is in force.

[Raj Saini, Liberal, Kitchener Centre, ON]

Yes.

[Nathalie Levman]

Would you be caught by that offence in that scenario? I do not believe so.

[Raj Saini, Liberal, Kitchener Centre, ON]

Okay, that's fine.

Thank you, Chair.

[The Chair]

MP Genuis, please.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Very briefly, in addition to that, I wanted to note, on Mr. Saini's point, that purchasing organs is illegal in India. It's illegal in any of these other countries. The question asked in the House was: What happens if someone goes abroad to a place where this practice is legal? To my knowledge, the only country where it's legal to purchase an organ is Iran, and they don't allow foreigners to purchase organs. It's almost certain that if somebody were running afoul of this law, they would already be running afoul of the domestic law where they were anyway.

We have to think about the standard of proof as well. If you were giving a bit more than expenses, it wouldn't meet the standard of proof. If it were exorbitant and clearly beyond a reasonable doubt that far more money was changing hands, it would be caught in Indian law as well as Canadian law. I think Canadians thinking about the case you're thinking about can rest pretty easy, given that information, and the response we heard.

[The Chair]

Thank you very much.

MP Wrzesnewskyj, please.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

Having heard Ms. Levman's explanations, I believe that has assuaged some of the concerns that several committee members had expressed at our earlier meeting, so I withdraw this amendment.

[The Chair]

Can I seek unanimous consent to withdraw the amendment, please?

[Some hon. members]

Agreed.

[The Chair]

(Amendment withdrawn)

I believe the last amendment in clause 2 is MP Saini's, please.

[Raj Saini, Liberal, Kitchener Centre, ON]

I'm going to put on my medical hat for this one.

I'm proposing that clause 2 be amended by deleting lines 34 to 39 on page 2. It removes the duty to report.

There are several issues with this duty to report. When you look at the medical profession, whether you're a doctor, nurse or pharmacist, I don't think you would break your medical privacy code to report to another authority. I don't think that would be possible; neither do I think it's necessary. Also, you are encroaching upon provincial and territorial jurisdiction in regard to health, which would be another issue.

The other thing is that the way it's written, it would broadly capture organ transplants that happened lawfully in Canada and you would have to create another reporting authority, which I think is unnecessary.

On the duty to report, I'll just give you a very clear answer. If somebody goes to get a transplant in another jurisdiction and they come to Canada and go to see a physician, the physician will not report that. If that patient comes to me, there are very specific, targeted medications for transplant patients. I will, under no circumstances, report it. If the person needs medical care in a hospital and a nurse is involved, there is no way that a nurse is actually going to report that.

This duty to report is not practical. It's going to create another regime, which is obviously going to take up resources. I don't think the duty to report is necessary, so I say we should just remove it.