Foreign Affairs Committee on Nov. 16th, 2022

[Dr. Miriam Cohen]

There is no specific legislation that I would refer you to, other than the international legislation I mentioned.

Perhaps one additional point is that for the countries that have ratified the Council of Europe Convention, there is generally the obligation to enact legislation that would make the convention applicable internally, so there is this tendency of criminalizing or suppressing the practice of organ transplant—

[Rachel Bendayan, Liberal, Outremont, QC]

—which would be implementing legislation of an international convention.

Would Canada, in fact, become a leader then in proposing to do this, as Bill S-223 does?

[Dr. Miriam Cohen]

Mr. Chair, in my view, yes.

As I mentioned, I think there is a tendency to tackle organ trafficking specifically in domestic legislation. With this bill, Canada would be at the forefront of dealing with this horrific practice and also, specifically with the extraterritorial nature of the bill, would be able to tackle a global concern and not just specifically territorially.

[Rachel Bendayan, Liberal, Outremont, QC]

Thank you. I believe that is a very good thing.

Can you elaborate on some of the mechanisms that are in place in Bill S-223 to track and monitor—

[The Chair, Liberal, Ali Ehsassi]

Sorry. You have 10 seconds remaining.

[Rachel Bendayan, Liberal, Outremont, QC]

I apologize, Dr. Cohen. It is a complex question to which you will not be able to respond in 10 seconds, so I thank you again for your testimony and for appearing before our committee. It's a pleasure to see you again.

[The Chair, Liberal, Ali Ehsassi]

Thank you, MP Bendayan.

We now go to MP Bergeron, please. You have four minutes, Mr. Bergeron.

[Stéphane Bergeron, Bloc, Montarville, QC]

Thank you, Mr. Chair.

I will follow up on Ms. Bendayan's lead with questions for Ms. Cohen.

Ms. Cohen, I must say that I was looking forward to hearing one of the witnesses say a few words in the language of Molière. It's not something that happens very often at this committee. I imagine that if I ask you questions in the language of Molière, we will have the pleasure of hearing you answer us in that language.

Bill S‑223 contains the following provision:

Everyone commits an offence who [...] obtains an organ to be transplanted [...] carries out, participates in or facilitates the removal of an organ [...] knowing that the person from whom it was removed or a person lawfully authorized to consent on behalf of the person from whom it was removed did not give informed consent to the removal, or being reckless as to whether or not such consent was given.

How will it be established that the persons involved knew or did not care that the removal was done without the informed consent of the donor?

[Dr. Miriam Cohen]

I thank the member for his question and for his invitation to speak in French.

What we have here, when it comes to whether consent has been given or caring about it, is the level of intent. It's something that's already found in other offences in the Canadian Criminal Code. It is a question of proof. It must be proven, in criminal terms, that the person in question knew that it was done without consent or did not care to know. That evidence can be by testimony or it can be written evidence. I suppose it will depend on the situation.

The concept of level of intent, knowledge or recklessness is not unique or novel in the Canadian Criminal Code.

[Stéphane Bergeron, Bloc, Montarville, QC]

I understand that this provision could pose a number of difficulties with regard to the burden of proof.

We see that a number of nations have legislated in such a way that there is upstream assurance that things have been done ethically. Take Taiwan, for example. They require patients who have received transplants overseas to provide certain information in writing about the transplant they received in order to receive care in Taiwan, following that transplant, I imagine.

Is this the kind of measure that would make things easier? Rather than having to act downstream, we can act upstream to make sure things have been done ethically.

[Dr. Miriam Cohen]

What is proposed could be a way to act upstream. However, I imagine there are also other ways to show that the person knew or did not care that the collection was made without informed consent.

There could be other levels of intent, but what the legislator has chosen to include in this bill are the concepts of knowledge and recklessness. According to what is proposed, there are no other clauses that could help. It would really be a matter of establishing the evidence based on the circumstances of each case.

[Stéphane Bergeron, Bloc, Montarville, QC]

In light of what Taiwan is doing, do you think it would be a good idea to consider a change along these lines?

[Dr. Miriam Cohen]

From a legal perspective, this might help with the burden of proof. On the other hand, I couldn't tell you whether it would create any logistical complications or complexities. Of course, if it were possible to know upstream whether or not the person had knowledge of the lack of consent, that might help with the burden of proof.

[The Chair, Liberal, Ali Ehsassi]

Thank you, Mr. Bergeron.

We will now go to MP McPherson. You have four minutes.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you, Mr. Chair.

Thank you to our witnesses.

I also wanted to take a moment to thank all of you for coming on Monday as well and to acknowledge that the committee did not hear your testimony then. The work you do is vitally important and, Dr. Gill, I know that you are in fact a surgeon. For us to have wasted your time that way is inexcusable. I want to apologize on my own behalf and, I'm sure, on behalf of many of my colleagues.

To start with, Dr. Gill, I want to ask you a few questions.

I understand what you were saying earlier about wanting to see that culpability apportioned more fairly, I guess. I think what we recognize here is that people who are looking for an organ are in fact very often desperate, and there should be some of that there, but you did talk about the idea that education is a key, that educational activities are key.

What would that look like? How could the Government of Canada and the provinces engage with Canadians on education activities that would help us reach that goal of having Canadians more aware of the impacts of organ harvesting?

[Dr. Jagbir Gill]

Thank you very much for the question.

Mr. Chair, if I may, we practise a lot of that on the patient-to-patient level currently. I know that at our centre we have posters. We have big signs that have come from the Declaration of Istanbul Custodian Group, which essentially stamps out organ trafficking. We make it part of our standard counselling for patients when they're going through their transplant process to very overtly mention and state that this is an unacceptable practice and outline the reasons why. That's how we do it on the front lines.

If you took a public-based approach, as was outlined earlier, to combat what the current media perception is, I think there certainly are opportunities to highlight the issues. It's not only why this is bad from all perspectives and from an ethical standpoint, but the piece that's resonated in my experience with patients happens when you tell them, “This is not good for you.”

I tell my patients: “If you're going to buy a television, you're going to buy it from a reputable place. This is a big deal, and if you're going to go somewhere where there are no standards, you will have bad outcomes, because this is an illicit practice and that will give you bad outcomes.”

That does seem to be very effective at deterring people who are considering this practice.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I wonder, then, about a national strategy or a provincial strategy. While I'm sure the work you do to inform your patients of the impacts on their outcomes.... It would probably be more appropriate to have this as a national strategy implemented across the country so we could ensure that every clinic—every clinician—is providing the same information. Is that accurate?

[Dr. Jagbir Gill]

Yes. I would agree with that.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you.

The other thing you talked about a bit was the idea that there is a risk of legislation like this deterring patients from coming forward. I wonder if you could talk about any strategies we could employ to prevent that from happening, any ways that we could address that.

[Dr. Jagbir Gill]

I think that's a very difficult question in terms of what the most appropriate strategies are to deter this practice.

On the one hand, if legislation is in place, we do need to increase awareness so that people are aware of the potential consequences. There is a significant risk on the clinical side: We may have individuals who are going to have worse outcomes because they won't come forward in a timely fashion for fear of prosecution.

I think a lot of the upfront work we'd need to do would be important. That's partly why I personally am in agreement with a structure wherein there isn't mandated reporting. I think that maintains the confidentiality we have with patients. It would allow us to capture it, but you'd need another mechanism in addition to that to make sure you're identifying these cases.

[Heather McPherson, NDP, Edmonton Strathcona, AB]

Thank you very much.

[The Chair, Liberal, Ali Ehsassi]

Thank you, MP McPherson.

Now we go to the second round of questions. We have four spots left.

Mr. Genuis, you have three minutes.

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

Thank you, Mr. Chair.

This legislation in front of us does not have the mandatory reporting provisions that were in an earlier draft. I think it's really important for us to discuss and consider some of these questions and whether they should be part of a future piece of legislation. Certainly the goal with this bill is to pass the parts that everybody agrees on, and then we can sort of see and explore what maybe should or should not be added. I think we got great feedback today to the effect that we may even want to provide a report independently of this legislation or study other ways to combat this issue.

Dr. Gill, because it's sort of related to the broader issue, I do want to probe the question of mandatory reporting a bit.

Right now there are certain situations for which mandatory reporting is required. Gunshot wounds are the most obvious example, but I think it would apply to sexual abuse as well. I wonder if you can speak to the dynamics around the currently mandatory reporting in those cases and what we can learn from those situations that might or might not be applicable to mandatory reporting in this case.

[Dr. Jagbir Gill]

I think I should start by saying that I'm certainly not an expert in the field of mandatory reporting and the logistics of it. In general, the current mandatory reporting is typically in a scenario of trying to prevent harm. A concern that an individual is going to cause harm to someone is the most classic scenario in which we would be obliged to breach confidentiality. In this instance, the distinguishing feature is that the harm has already been done. I think it's a bit different knowing that someone is about to embark on the act of transplant tourism as opposed to knowing that somebody has already done that act.

That would be the primary distinction I would come up with at this point.

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

Yes. That's interesting, but I suppose in the case of gunshot wounds, that is a case in which the harm has been done, right? In the case of ongoing abuse to a person, yes, that's a case in which you're preventing harm. You can also imagine cases in which someone had been shot, maybe in the context of gang violence, and they didn't want the reporting to be involved, so they were less likely to come forward to the hospital.

There are some risks, I suppose, but on balance, society has decided to have that mandatory reporting in that case. It's an interesting moral question and dilemma not tackled by this bill, but I think it's worth considering.

Do any of the other witnesses want to weigh in on the question of possible reporting requirements?

If that's a no, that's okay. I'll cede the rest of my time. Thank you.