Foreign Affairs Committee on Feb. 27th, 2019

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

In respect to Mr. Wrzesnewskyj's point, as I said, I have to believe that your heart is in this bill fully.

Usually when people, especially on the government side, come with amendments, they have a reason to do so. On the government side, there is some uncertainty over this bill, and they're bringing those amendments forward just to make sure that they satisfy some members or maybe the government at large.

In respect to that, I think the assurances that my colleague Mr. Genuis has asked for...I'm sure you've heard them. They're very legit and very sincere in that we need to make sure that we pave the way freely for this bill to make it through without any unfortunate hurts that we would definitely not like to see.

[The Chair]

Let me take this opportunity to say that I think the comment made around this table from all parties, at every opportunity, is that this is a bill that this committee considers to be important. I think we are all working with the goal of seeing it passed in the House. I appreciate the goodwill that exists around the table and the desire to work using all means to ensure that it receives smooth passage in both places.

With that, if there's no more debate, does the amendment carry?

(Amendment agreed to)

Now, we're on to the next amendment.

Mr. Wrzesnewskyj.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

This is an amendment to clause 2 as well.

The amendment would delete lines 18 to 23 on page 2. That clause specifically deals with the definition of informed consent. Consent was referenced in all three of the first incarnations of this legislation, but not the definition. I understand this was a later addition.

With proper intent, sometimes people create some additional challenges. In this case, the challenge of leaving it as a reference only to consent is that informed consent is a health law concept, as opposed to a criminal law concept, and people much better versed in law, and especially constitutional law and the breakdowns between provincial and federal jurisdictions, have flagged this. In fact, this is something that was debated and discussed during the debates on assisted dying legislation and the definition of informed consent was specifically excluded at that time from the government's legislation so as not to inadvertently cause jurisdictional problems in that legislation. The same would hold here.

[The Chair]

Thank you very much.

Mr. Aboultaif.

[Ziad Aboultaif, Conservative, Edmonton Manning, AB]

My question is how this proposed amendment would strengthen the existing bill. I see that in 240.1(1)(c) the word “reckless” is used regarding whether or not the person gave informed consent. If that's going to change the notion of the original bill...I don't know where this is going to come into play and strengthen the bill itself.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

When I drafted the first piece of legislation, it did take a number of months. Many of these things were looked at, and consent is quite clear. It's understood. As I said, in my first two pieces of legislation and the Honourable Irwin Cotler's introduction, that paragraph was not part of it.

I think there was the best of intentions by providing additional wording around it, but unfortunately, just as it would have with the assisted dying legislation, it would have potentially created jurisdictional issues in the legislation. It doesn't necessarily add anything while creating potential jurisdictional issues.

As I said, I'm not a lawyer; it's just because I've spent so much time looking at these various versions of the legislation. If perhaps the parliamentary secretary, who is a lawyer, feels he could provide greater clarity, that would be tremendous, but if my explanation satisfies, then—

[The Chair]

MP Wrzesnewskyj, I can also point out that we have Nathalie Levman, senior counsel, criminal law policy section, Department of Justice, who might be able to provide some clarification.

Would you like a clarification on it? Would that be helpful?

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

That's even better.

[Nathalie Levman, Senior Counsel, Criminal Law Policy Section, Policy Sector, Department of Justice]

I'm not sure if it's better.

Defining informed consent in the Criminal Code for the purposes of one set of provisions and not defining it for others could also create statutory interpretation problems. That's one thing we want to avoid.

There were numerous reasons informed consent wasn't defined for the purposes of the medical assistance in dying provisions. One of them was that it has clear meaning in provincial and territorial health law. It means the patient has to understand and agree to the nature, risks and consequences of the medical procedure.

My understanding from colleagues who worked on the medical assistance in dying legislation was that the medical community wished the health law definition to apply, and not have a definition in the Criminal Code. Because it has clear meaning in law, I would suggest that it's not necessary to define it. You wouldn't want to define it differently from how health law principles have interpreted it.

[The Chair]

Thank you very much, Ms. Levman.

MP Genuis, please.

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

It's the interesting situation we find ourselves in here, because the arguments about why this doesn't need to be in were arguments that were made originally by, I think, the mover of this bill in the Senate—about why the explicit definition of informed consent isn't necessary. In principle, my position would align with that proposing the amendment, but at the same time, by removing it we are repudiating an amendment that was made by the Senate. It was an amendment made in committee.

I don't know if Ms. Levman is the best person to answer this, but did you follow the testimony that took place in the Senate committee on this? My understanding is a witness recommended this addition. Do you have specific reflections on the arguments they made and why those arguments weren't correct?

Also, could you tell us a little more about the statute interpretation problems this creates? If this is simply unnecessary but is not doing any harm, then it doesn't seem worth risking the disagreement with the Senate. If real legal problems are created, not just redundancies, then we should know that too.

[The Chair]

Thank you.

Ms. Levman.

[Nathalie Levman]

Those are excellent questions.

When you define the same term in one place and for one purpose and not for another, and then the courts interpret that, they may assume that Parliament intended it to mean two different things in two different contexts. They may be confused as to what Parliament intended, and it can create some interpretation problems. It's impossible to speculate as to what the nature of those problems is or could be, but we always try to strive for consistency in the Criminal Code. Consistent approaches lead to consistent applications of the law, so we try to adhere to a basic criminal law principle when we draft criminal legislation.

To answer your first question, I have read the record and I understand the arguments that were put forward, but it's my understanding that this person was maybe not aware of the fact that a specific decision had been taken in another context—the criminal law context that crosses over with health law principles—to not define that term, and allow the provincial and territorial law on the issue to fill that gap as requested by the medical community.

[The Chair]

Thank you, Ms. Levman.

Parliamentary Secretary Virani, please.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Yes, I have just two points.

One is that I think clarity, consistency and avoiding confusion in the Criminal Code are important objectives. This is something that I think is a non-partisan issue. It's something that all governments strive for.

As an example of that, there are zombie provisions in the Criminal Code that we've sought to remove and that members of Mr. Genuis's party have sought actively to remove, just for that very reason. Having provisions in the Criminal Code that are no longer operative or are inconsistent can lead to misinterpretation of law.

The second point is just to respond to what Mr. Aboultaif raised, Ms. Levman, if you can let us know. He referenced the fact that informed consent is used in the prior clause, in paragraphs 240.1(1)(a), (b) and (c). Is it your testimony before this committee that notwithstanding if the definition were removed, the ability to enforce these new provisions, were they to become law, would not be jeopardized? Phrased in another way, does the lack of a definition compromise the ability to enforce this were it to become law?

[Nathalie Levman]

No. I don't believe that it does jeopardize the way in which these provisions would be implemented, because it would be the health law definition that would be used to interpret each of these offences. As I've stated, the health law understanding of what informed consent means is clear. What it means is that the patient has to understand and agree to the nature, risks and consequences of any given medical procedure. I think that's well established.

[The Chair]

Thank you.

If there's no further debate on the amendment, does the amendment carry?

(Amendment agreed to)

We will now move to the third amendment.

MP Wrzesnewskyj, I think this is yours too, within clause 2.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

That's correct.

In testimony we heard earlier this week, and more specifically from Mr. Matas, there had been some debate around the financial transaction paragraph in clause 2, and he provided some helpful insights. He referenced the wording used in the Istanbul declaration, and I believe it provides, once again, greater clarity.

I move that in clause 2, we replace lines 28 to 30 on page 2 with the following:

person, knowing that it was obtained for consideration for the purposes of exploitation, or being reckless as to whether or not it was obtained for those reasons.

The key wording there is “for the purposes of exploitation”. That comes from that Istanbul declaration. As I mentioned, that was a very helpful suggestion from Mr. David Matas.

[The Chair]

Thank you, MP Wrzesnewskyj.

Is there any debate?

MP Genuis.

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

This is more of a technical question. Maybe Mr. Wrzesnewskyj or Ms. Levman, or both, can comment on this.

When somebody receives an organ in the context of trafficking, they are not so much intending to exploit; they are simply indifferent to the exploitation. Their intent is to get an organ for themselves. They're not aiming at exploitation as a core objective. Their objective is to get that organ, but exploitation is part of the process. Maybe there's something in the legalese here that I'm missing, but the term “for the purposes of exploitation” doesn't seem quite as clear.

I see the benefit of amending it, but to me, something like “obtained for consideration in a way involving exploitation” seems clearer, in plain English at least. Maybe there's some legal connotation that I'm missing.

[Borys Wrzesnewskyj, Liberal, Etobicoke Centre, ON]

I defer to Ms. Levman's thoughts on this.

[Nathalie Levman]

Thank you.

That's an excellent question. I think what you're pointing to is a conceptual problem, in that you don't understand how someone can purchase something with the intent to exploit. Essentially, “obtained for consideration” is another way—a technical legal way in contract law—of saying “purchase”. I would agree that there are some conceptual problems with that language. I'm not sure what it means myself.

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

It's a good thing I asked.

[The Chair]

Do you have a suggestion on language to be able to address this?

[Nathalie Levman]

Unfortunately, I'm here to answer legal and technical questions about the bill and the amendments proposed. I'm not actually sure what the policy objective is with this amendment, which also makes it complicated.