Justice Committee on May 2nd, 2016

[Giuseppe Battista, President, Committee on Criminal Law, Barreau du Québec]

I thank the committee for inviting us.

At the outset, I want to say that we welcome this legislative initiative, which responds to the requirements of the Supreme Court in the Carter ruling. Generally speaking, we feel that this is positive. However, I would like to share some of the reservations we have about the bill with committee members. I will highlight four points, and Mr. Ménard will provide more detail on them; then we will answer your questions.

The first reservation we have concerns the offence of counselling someone to cause their own death. There is an exemption in the bill for helping someone to die, but providing advice in that regard is not exempted. We think the bill should explicitly say that when a doctor explains all of the care available to a patient, including medical assistance in dying, that does not constitute an offence. In short, the bill should specify that for a physician to counsel a person on assistance in dying is not an offence. This has to be made very clear. Physicians or other health care professionals should not be charged with an offence if they provide information that could be interpreted as advice.

The second element is that in the bill the definition of medical assistance in dying also includes, for physicians, prescribing or providing a substance that will cause death, although the person will himself ingest the substance in question. This concerns us. One can easily imagine a situation that could arise if the health professional is not present at the time the person ingests the substance that will cause death. How can we know that that is really what caused the person's death? Moreover, there are ethical and legislative issues which may place health professionals in dilemmas or conflicts with their own standards and their own regulations. We think that the legislation should prepare for and include those situations. One cannot simply give someone a substance that can cause death without some kind of follow-up. We are concerned about that.

Also, with regard to the principle in the Carter ruling, the bill is somewhat too restrictive in our opinion. In order to obtain medical assistance in dying, it has to be shown that the medical condition of the person who is asking for this is one of advanced and irreversible decline in capacity, and that the natural death of that person has become reasonably foreseeable, in light of his overall medical condition, without necessarily having a prognosis on life expectancy. We feel that those criteria are not in the Carter ruling, and we think that the legislation has to be based on principles and statements that are in the Carter decision, and that they should frame this exercise. There is a clear risk that the bill will be challenged. Mr. Ménard will in fact go into this aspect more in depth.

The last point, which I will address quickly, concerns the new requirements regarding the documents physicians will have to complete. They must fill out forms. Even though the bill states that this must be done deliberately for an offence to be committed, it is somewhat excessive, in our opinion, to criminalize the fact of not having filled out a form properly. The provincial laws and regulations that regulate the medical profession should normally suffice for this type of information.

I will now yield the floor to Mr. Ménard.

[Jean-Pierre Ménard, Member, Working Group on the End-of-Life Care, Barreau du Québec]

Ladies and gentlemen, members of the committee, good evening.

The Barreau du Québec is the first intervenor from a province where legislation already exists on medical assistance in dying. The law has been in effect since December 10, 2015. There have already been dozens of cases, and certain issues have begun to arise in applying the law in some situations. To contribute to your debate, we are going to share some of the difficulties we have observed here and there, so that you may avoid encountering the same issues with the federal act. They are not major ones, but we have to be aware of them.

As Mr. Battista said, our first comment concerns the issue of assisting someone to commit suicide. The Quebec legislation does not provide for assisting suicide. We must not forget that the Quebec law is very comprehensive. It covers all of the medical assistance in dying practices that are under provincial jurisdiction. We decided not to include assisting suicide because at the time it was seen as an aspect that was essentially criminal, and the province had no jurisdiction in the matter. The provincial act is an act on care, it is not criminal legislation. Consequently, assisting suicide was not included. However, this will now be made accessible through medical assistance in dying.

We think it is important to think about measures to regulate this that are not contained in the Quebec legislation or any other provincial law. As Mr. Battista pointed out, one of the difficulties comes from the fact that the physician has no control over what happens once he has provided the medication to the patient. He cannot even certify that the patient really did pass away because of that process, nor can he determine when the death occurred. To the extent that the federal law permits assisting suicide, we think it should contain more obligations, such as requiring from those who assist the person that they immediately notify authorities, either the physician or a public authority, that the person has passed away in this manner, so that the proper management of the process may be monitored.

As Mr. Battista pointed out, there is an issue regarding physicians' ethical obligations. There is, for instance, the obligation of following one's patient and not abandoning him. For some physicians, giving a patient a pill and allowing him or her to take it himself is seen as a kind of abandonment. It can also be difficult for a physician to get involved in such a process.

Let's talk about compatibility with the Carter ruling. We should be aware that the impact of the law will in future be measured in light of section 7 of the Canadian Charter of Rights and Freedoms, which is broader in scope than what the bill is proposing. If we adopt more restrictive criteria than what is now allowed under section 7 of the Canadian Charter of Rights and Freedoms, clearly we will be opening the door to legal challenges. The Barreau du Québec feels that it is not desirable that people who could have access to medical assistance in dying under the criteria in the Carter decision, no longer have this access because of Bill C-14. We have seen what happens in Quebec when a more restrictive standard is applied. For instance, some people have stopped eating in order to become eligible under the law. This type of situation, which occurs because of a more restrictive criterion, is not a desirable development. This is important and that is why we made that recommendation.

Moreover, we think that the criterion of reasonably foreseeable death is too vague, too uncertain. It is important for the Barreau du Québec that citizens be able to count on a legal standard that is as clear as possible. The fact that this is highly subject to interpretation, because of the wording, may deprive certain Canadians of the constitutional right to obtain assistance in dying. If we want such a criterion to be present, it is important to develop it more. However, since this criterion does not exist in the Carter ruling, we think that leaving it in the bill will open the door to legal debates. That is why we recommend the pure and simple elimination of paragraph 241.2(2)(d) proposed in the bill.

I'd like to discuss a few more technical situations regarding the safeguards, among others the characteristics of the witnesses. The standards being imposed are so strict that it will be difficult even for the person concerned to find a witness to sign the form. Members of the family and many other people are excluded. We should remember that the witness only attests the signature, nothing more. In any case, the physician is going to have to verify that the patient gave his or her consent freely. I think that too much is being imposed on the witnesses. These criteria would be more appropriate if we were asking for consent on behalf of someone else. But in the case of a simple witness, we think that these measures are far too rigid.

Let's move on to the declaration. Our brief was written from the perspective that a very detailed provincial law exists, and we are adding a federal law. In order to avoid a multiplication of forms and reports, I think it would be important that there be an exception in the bill; when the government is satisfied with the provincial declarations that are required, there should be an exemption in the bill so that physicians do not have to make a host of declarations. An overabundance of paperwork will also discourage a certain number of physicians from doing these things.

In Quebec, the reporting process is already very elaborate. Why should there be an additional report? I think that this will only make the process more cumbersome, unnecessarily. However, nothing prevents federal authorities from requiring that the province provide the information collected through its own monitoring measures. In Quebec, the province monitors medical assistance in dying. We have created an organization specifically for that purpose, the Commission sur les soins de fin de vie, the end of life care board, in addition to the monitoring done by the Collège des médecins and the Conseil des médecins, dentistes et pharmaciens. And so the creation of a new level of monitoring seems superfluous to us. We think you should consider less onerous monitoring measures in the provinces where a law already exists.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your presentation.

We're going to End of Life Planning Canada next.

Please go ahead, Madame Hébert.

[Françoise Hébert, Chair, End of Life Planning Canada]

Thank you very much.

Thank you, Mr. Chair, for the privilege of appearing before the committee this evening.

I'm Françoise Hébert, chair of End of Life Planning Canada. Before retiring four years ago to become a full-time volunteer, I was the CEO of the Alzheimer Society of Toronto. We actually trained Chief Blair's staff on how to find the poor lost souls who got lost all the time.

My colleague, Nino Sekopet, is a psychotherapist. He is our client services manager. You may recognize him from the current issue of Maclean's magazine, which profiles him as Canada's leading assisted-death counsellor. Nino is the one to call if you want a safe and confidential place to talk about how to achieve a good death, and he is being swarmed by the media these days—his 15 minutes of fame.

End of Life Planning Canada regrets that Bill C-14 is creating certain limitations and conditions that will shut the door to the option of assisted dying for many Canadians who might otherwise meet the criteria set out in the Carter decision.

The Special Joint Committee on Physician-Assisted Dying got it largely right, in our view, and we hope that this committee will agree that strength and gumption are called for when regulating a Charter of Rights and Freedoms issue, even if this means going further than other jurisdictions have in dealing with such a fraught and deeply personal decision as to request assistance to die. Therefore, we beg each of you around this table, as the Supreme Court justices did so well, to imagine yourself with a grievous and irremediable medical condition that's causing you enduring suffering that is intolerable to you. That is the perspective that you need to legislate from.

I'm going to turn it over for three minutes to my colleague, the famous Nino Sekopet.

[Nino Sekopet, Client Services Manager, End of Life Planning Canada]

Thank you, Françoise.

Thank you for having me here. My name is Nino Sekopet, and I am a psychotherapist retained by End of Life Planning Canada to support people who want a safe place to talk about dying. For four years before this, I played the same role with Dying With Dignity Canada.

I deal every day with the complex and profound topic of the end of life. I see it as a continuum that, unfortunately, consists of two emotionally charged and polarized extremes. We have people who support physician-assisted dying and we have people who oppose it. There is also a vast space in between. Looking through a purely psychological lens, I believe that when we as individuals or as a society stand in either one of those polarizing extremes, deserting the vast in-between space, we miss something very important. We miss the very thing that gives the charge to those polarizing extremes. We fail to recognize the impact on the end of life. We fail to recognize the impact of the fear and insecurity that drives the emotional charge at both extremes.

I believe that if we are able to correctly address the impact of fear and insecurity, and if we do it to the degree that is necessary, those polarizing extremes will lose some of their charge. We will become less polarized. As individuals and as a society, we will become healthier and more willing to consider and accept our differences. We will become more inclusive rather than exclusive. We will become more tolerant.

What I've learned through my work with people approaching death is that clarity is the best way to contain fear and create a space where these patients can feel more secure. Clarity provides a psychological frame within which individuals can rest safely, knowing that they are secure, recognized, and validated. This applies to everyone at the end of life, to all of us. It applies equally to health care professionals, to patients, and to their families.

In my professional opinion, the reasonably foreseeable natural death criterion proposed in Bill C-14 provides little security, little frame of reference. Because of its openness to interpretation, it encourages fear and insecurity, rather than creating space for safety. Removing that criterion from the proposed legislation will restore clarity in line with the Supreme Court's Carter decision. It will benefit everyone engaged in the end-of-life territory, patients as well as health care professionals. It will ultimately benefit all of us as individuals and as a society.

I would like to invite you to step into the vast in-between space and contain the fear of all individuals engaged in end-of-life territory by removing the reasonably foreseeable natural death criterion from the proposed legislation. I invite you to trust the individual who is suffering terribly, and that person's physician, to know when their time has come. By doing that, you will make us all feel safer, regardless of our place on the end-of-life spectrum.

Thank you.

[Françoise Hébert]

I want to step in now and address the second point in our brief, which is advance requests for medical aid to die.

Bill C-14 ignores recommendation 7 of the special joint committee, which would permit advance requests for someone diagnosed with a condition likely to cause loss of competence—for example, Alzheimer's disease. The government is proposing instead an independent study of advance requests, and it may revisit the issue in five years when the bill is reviewed.

Here is our view.

Dementing diseases such as Alzheimer's are terminal. They kill vital brain cells slowly and cruelly. The course of the disease can last up to 20 years after a diagnosis. In the late stages of dementing diseases, the body is alive but the brain is compromised beyond repair. The person has become a shell, living in an advanced state of irreversible decline in capability. It is a pitiable state to be in.

The idea of being demented deeply scares me. I would rather be dead than live the final stages of dementia. We've all heard someone say “Just shoot me” as they imagine themselves severely demented. We foresee the loss of quality in their future life. They foresee the quality of life in their future life, and they beg to be allowed to receive assistance to die if they have by then lost the capacity to make the request. We believe that a valid advance request that includes a specific, independently verifiable description of a future state so devoid of quality that life itself would be intolerable to the individual should survive its author's loss of capacity to request assistance to die.

Some will say this can't work because that person might change their mind, but we posit that when you lose the capacity to make an informed choice about your own body, then you also lose the capacity to change your mind, and your advance request should stand as the last expressed wishes of your competent self.

If my validly written and witnessed advance request describes a state of being so lacking in quality that it would be intolerable to me, and if my description of that state is sufficiently clear that my legal substitute decision-maker and two independent medical professionals can verify that my debilitation has reached the point that I so clearly described, then my advance request should satisfy legal requirements to allow me to receive assistance to die.

Our overall view comes down to this. Bill C-14 must put forward clear rules about who is eligible for assistance to die, but it must do this in a way that respects the autonomy of the individual, in consultation with medical professionals, to decide when suffering has become so intolerable that death is preferable. This can be done in real time, or it can be done in advance through a clear and valid advance request. We beg you not to abandon to a pitiable fate those Canadians who would take the time to draft an advance request for assistance to die should they at some point in the future lose the capacity to make an advance contemporaneous request.

Trust the people who elected you to represent them, and trust the medical profession.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we move to Dr. Johnston.

[Dr. Will Johnston, Chair, Euthanasia Prevention Coalition of British Columbia, As an Individual]

Thank you very much, Chair and members of the committee. It's an honour to be here today.

I am a family physician with 35 years of experience. I deliver babies. I look after people who are at the palliative end of life. I look after people with disabilities who are nowhere near dying. I am perhaps the only person at this table who has conducted capability assessments—about a hundred of them, in fact—with a lot riding on a legal medical assessment of whether the person was capable.

It was with some great relief that I saw that Bill C-14 at first reading, as drafted, took a very careful approach. Far from trying to be groundbreaking or in the van of the entire world in its daring nature, it took a very responsible approach to the many issues in front of us.

I'd like to take a minute to tell you a story about Uncle Matt.

Uncle Matt was a strong older man who was on a hunting trip in northern B.C. He spent two weeks traipsing through the bush, but on the way home, near Chilliwack, he began to suffer weakness on one side of his body. He was having a stroke. He eventually was transferred to Surrey Memorial Hospital and came to my attention 10 days after a feeding tube had been pulled out. His niece contacted me because she was able to discern that he wanted to live. He was able to say “hungry“, “thirsty“, and the niece asked Uncle Matt's daughter, “Why are you not putting that tube back down? We think he wants to live.” Her reply, in part, was “I've been tallying things up, and he wasn't a very nice man.”

The niece and another nephew kidnapped him from Surrey Memorial Hospital and took him to Vancouver General Hospital. The nurse there, although he was able to croak out the word “thirsty“, was aware they did not hold powers of attorney and put him in an ambulance and sent him back to Surrey Memorial. He died.

He died during an emergency hearing that I helped arrange, during which a judge actually issued an order that the feeding tube be put back down, that he be rehydrated, and that his true wishes discerned.

Now, this is not to say that the people who've come to Nino or who have come in front of Françoise are like Uncle Matt, because the people who have self-selected to approach people who are involved with end-of-life planning and that organization have already self-selected to be highly motivated. This is to simply demonstrate that the medical system, as it now stands, consisted for Uncle Matt of doctors who would not listen to the possibility that he wanted to live and was being intentionally dehydrated to death—he had several million dollars' worth of real estate—and that the hospital risk management, such as it was, was more concerned about the hospital not being sued than it was about Uncle Matt's wishes being respected.

This takes me to the point that this bill, although it might be assumed, nowhere specifies that doctors must actually examine the patient, the extent to which they must do so, or the extent that doctors must inquire into the internal and external factors that create vulnerability for the patient. I refer you here to the vulnerable person standard, which is being published now and which contains four key elements that should be reflected in this legislation.

This lack of requirement for the two doctors—and I use doctors to mean doctors and nurse practitioners—to deeply engage with the patient begins with the acceptance by the doctors of a written request, which can be created before two witnesses by someone representing the patient who purports to understand the nature of the request. The doctors do not have to meet, nor do they have to assess the motives of the representative. The patient representative and two witnesses must be physically together at some point in time, but a doctor does not have to be present at that time.

The two witnesses are not required to have any understanding of the situation, other than that a request is being signed and dated. The witnesses are not expected to have any knowledge of the patient's decision-making capability or the representatives' motives. Under the draft act, any number of physicians may be canvassed by anyone to find two who approve of death in any given situation.

The factors that are enumerated in the safeguard section of the bill in proposed section 241.2 are in many ways moot. Therefore, I would propose the first amendment of four that I'm interested in proposing, and it is that there needs to be some form of prior review by a third party, such as an independent, objective judge, or some sort of process in which the facts that brought this person to the point of being proposed for assisted suicide or euthanasia could be reviewed.

I can tell you that it is extremely difficult to make these determinations, and I have done it many times. I think that to expect that any two doctors in the medical system could do that is to invite wrongful death. I am sure that in 20 years, as the members of this committee must understand, many deaths will have occurred under the auspices of Bill C-14. I'm sure the members of the committee will want to think that if there are wrongful deaths emanating from this legislation, you did your best to plug the gaps, to fill in the holes, and to make sure that vulnerable people were truly protected. As it stands, the two-doctor standard for assessing consent and capacity, I would suggest, is insufficient, and I think I've been echoed in that concern by others.

My second point is that it seems that Mr. Rankin has the deepest understanding of the fact that a long period of time may happen between the dispensing of the medication and the death of the patient. In that period of time, there is room for abuse, sadly. In Oregon, once the dose is dispensed from a pharmacy, it goes out into the wild blue yonder and is never accounted for again. If the patient struggled and was actually given the dose by someone else, one would never know.

Although Mr. Rankin's insistent questioning on this matter may be designed to lay the groundwork for advance consent to be put in place, I think there's another interpretation that could be taken from his acute observation, and that is on the wording of proposed paragraph 241.2(3)(h), under safeguards, that the physician must

immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request

I would suggest that this wording really should be “at the time of”. Furthermore, why is it not possible for the lethal dose to be dispensed not from a pharmacist to the patient but from a pharmacist to the doctor, so that the doctor could ensure that at the time the lethal dose was used, the elements of consent were there and the capacity was there? This would address the concerns of Mr. Emberley from the pharmaceutical association as well as some of Francine Lemire's concerns.

We have heard four times, I think, from Minister Wilson-Raybould that nothing in this act compels anyone to become involved in assisted suicide and euthanasia. That, I think, suggests that the time may be right for those words to actually appear in this bill: “nothing in this act compels”. That could appear in the preamble. That could appear in another section. I think it would go a long way toward giving that central direction to conscience protection and the protection of professional judgment that is so desirable.

There is another question, of course, and that is the issue of whether we could actually make a simple wording change in the eligibility section of this bill, which would in some ways answer three of the four areas that I've talked about so far. We could actually.... I'm sorry. It's in proposed section 227, a proposed new section of the Criminal Code that deals with exemptions from criminal prosecution for doctors and others who provide assistance in dying to someone who qualifies under the eligibility criteria.

Under proposed subsection 241(2), it is stated that:

No medical practitioner or nurse practitioner commits an offence

There, we could easily say “no specially licensed medical practitioner or nurse practitioner”. This would address several concerns at once. One is that in the eligibility criteria, it is nowhere specified that the person has to have received the services or an offer of services of a multidisciplinary team that could try to address the symptoms that gave rise to the request for death. A specially licensed physician or specially licensed nurse practitioner could be charged with making sure that this had happened.

I think that's worth commenting on further. I've heard it said several times that it was unconscionable that this be left to two physicians who are not charged with making sure that alternatives have been offered, and that could easily be fitted into the eligibility criteria.

I look forward to your questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd like to thank each of the members of the panel for their presentations.

We'll begin questions with the Conservatives.

Go ahead, Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you, Chair.

Thank you to the witnesses for being here.

I'm sure most of us in this room have experienced saying goodbye to a loved one or a friend. In my 66 years, I've said goodbye to my parents and my in-laws. Whether it's at a young age like my mother, at 47, suddenly in her sleep, or most recently my mother-in-law, it hurts.

My mother-in-law had dementia. She was never in a pitiful state. She lived a very wonderful life of love. We loved her. She was dignified. She was dignified because we gave her that dignity. She was never in a pitiful state. I heard in testimony today that it could be defined as a pitiful state, and in special committee I heard that it's not sensible for somebody to be in an adult diaper in the last year of their life in bed with dementia, but we loved her and we miss her.

We went to say goodbye to her. We were told by her family physician that she had two to five days to live. We asked what sense there was in giving her her meds, her glaucoma drops, her dementia medicine, and whatnot. As a family we said to just stop the medicine and let her go. After three days of staying with her—she was in California—my wife said goodbye. It was a wonderful experience. When we came back, we phoned the rest home: Is she gone? No. The next day: Is she gone? No. When we called the third day, they said somebody wanted to talk to us.

She came back. We had another wonderful year. It was one of the best years we had.

I tell you, we don't know what we're playing with here. We don't know if somebody's going. She missed Dad and she wanted to go. She would have qualified. But she came back, and we had that wonderful year.

Dr. Johnston, regarding putting “nothing compels a physician to” in the preamble, preambles are not usually seen by the court as the guiding principles as they would be if they were actually in the bill. I think all of us have heard from witnesses that the number one issue—and we're hearing it over and over again—is to protect the conscience rights of physicians, nurses, pharmacists, medical practitioners. We need to get it right when we protect vulnerable Canadians and we need to protect conscience rights. The Supreme Court in the Carter decision highlighted that.

The legislation that's proposed in Bill C-14 at this point is silent on that. It's been explained by the minister and the department that it does not say that anyone is forced to participate in this, but it is silent on it. Would it help, instead of having it in a preamble, to actually state in the bill that it would be a criminal offence to force, intimidate, or coerce a physician or health care practitioner, nurse practitioner, or pharmacist to participate against their will?

What we have in the Carter decision is that it was legal to commit suicide, but it was illegal to assist somebody. Carter has said that under certain criteria, you can assist somebody. The pendulum has swung to where the special committee has said you must refer, but the Canadians that I'm hearing from want conscience protected.

My question to you is this: if Bill C-14 were amended to make it a criminal offence to coerce, intimidate, or force a physician, do you think that would deal with the issue as far as conscience protection is concerned?

[Dr. Will Johnston]

Thank you very much for what are in effect two excellent questions. I would like to take your first one up first.

Your poignant story about your mother-in-law reminds us that the fatal weakness of the whole concept of advance consent is the unsupported assumption that the loss of a legal capacity and perhaps the loss of verbal abilities must necessarily be accompanied by the loss of the ability to change your mind. In fact, the fatal flaw of the advance consent argument is that what you're in essence doing is telling the person who's becoming increasingly incapable—and this is often a gradual process—when you are no longer to communicate in a way that we are going to recognize, we're going to take away your right to change your mind. I think that this is the last thing that the drafters of this law would have intended. I think that it's extremely prudent that they have stayed away from enabling the decisions you make in one physical state and under one set of circumstances to rule tyrannically over you, potentially resulting in your wrongful death, but a wrongful death that cannot be discerned externally.

Taking you up on the next point, it is true that the strongest possible statement of conscience rights would be contained in a section of the Criminal Code that actually provided not just a ringing endorsement of the section 2 charter right to conscience—which has never been properly supported in jurisprudence that I'm aware of—but also actual penalties for discrimination against a person who was contemplating entering a health care profession, was in a health care profession, or was in any way involved in the care of a patient, where that person was being coerced to either renounce their determination not to participate in assisted suicide and euthanasia or to in any other way disadvantage that person. I would, of course, heartily endorse such a thing. As a balance for this amazing innovation in Canadian law about a statement of exemption from criminal prosecution, which is as groundbreaking as the rewrite of section 241, I think that it would be appropriate for it to be accompanied by an equally groundbreaking assertion of conscience rights.

I would challenge the committee to take this up as a special issue, because this is not the last contentious thing that's going to come before us. Medical science and genetics will deliver so many more contentious questions to us in the future. Are the conscience rights of the relevant professionals or involved practitioners to be thrown under the bus every time a new access right is declared by a court or by Parliament? The time has come to decouple conscience rights from access rights. This could most effectively be begun by a ringing endorsement of conscience rights and the protection of them in the Criminal Code.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We've exhausted that time.

We're going to go to Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair, and thank you very much, everybody, for attending the committee and for your thoughtful presentations. It certainly helps us in the job that we have to do to make sure we get this bill as right as we can.

My first question is for the representatives of the Barreau du Québec.

You stated that a physician or nurse practitioner who provides medical assistance in dying is not under this bill guilty of any offence, but that the fact of advising someone in this regard remains criminal.

Do you think we should amend the bill? If so, what would that amendment look like?

[Giuseppe Battista]

Thank you for the question.

The idea is to protect physicians so that they do not find themselves in ambiguous situations. I think Dr. Johnston explained the awkwardness of the matter. Since the subject is very delicate, we are concerned. If we do not have explicit immunity in the bill for a physician who counsels a patient about assistance in dying, we have to consider this in a broader way. Counselling someone who wants to commit suicide when one is not a recognized practitioner or licensed professional is something else. Our concern is about the interpretation that could be given to the fact of “counselling someone” or the scope that could be given to that.

Obviously, the relationship between physicians and patients is very close and confidential. Doctors have to be able to provide information freely to patients about all of the options that are open to them. We have to avoid placing physicians who counsel their patients in ambiguous situations. That is why we are proposing an amendment to protect physicians and other qualified professionals.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

In the interests of time, I'm going to move to End of Life Planning Canada.

You talked about advance directives in your presentation. Paragraph 127 in Carter talks about clear consent being required. Does Carter not limit that ability, because it clearly says consent?

[Françoise Hébert]

I don't know that Carter used the words “contemporaneous consent”; the consent has to be clear.

If you have a clear and detailed advance directive about a future state that you know would be unacceptable to you when you consider that future state, would cause you intolerable pain, it's like the option of time shifting forward. That's what I'm talking about.

By not allowing advance consent, you're shutting the door to the possibility of somebody who would suffer terribly knowing they were in that state, but you're not allowing them the option of assistance to die. You're shutting the door entirely to them. I'm saying leave that door open for them.

Advance directives as they're administered in the provinces and territories right now are a bit of a mess. They're all different. Some are legally binding and some are not.

I see a fairly straightforward national form specifically for people who in advance imagine a state that is unacceptable to them. All the other criteria would have to be met, but their description of the state that would be unacceptable to them would have to be clearly described in that advance directive. I would want that advance directive to survive the person's lapse into an incapacitated state in which they can no longer make an informed decision.

I do not believe that many people would change their mind when they imagine themselves in a vegetative state, in a fetal position, having to be spoon-fed, with somebody cleaning their poopy diapers every day. To some that lack of quality of life would be intolerable. I don't want the law to prevent that.

[Colin Fraser, Liberal, West Nova, NS]

Are you saying, then, that advance directives go beyond Carter or not?

[Françoise Hébert]

Carter didn't deal with advance directives at all. It said there had to be clear consent.

[Colin Fraser, Liberal, West Nova, NS]

It said physician-assisted death for a competent adult person.

[Françoise Hébert]

That's right. When you write an advance directive and you write it when you are competent, and then you lose competence, this advance directive should remain the last statement you made while you were competent.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for your help with that.

Mr. Johnston, you also clearly said you would support advance directives and a person can change their consent. How do we know they're not going to do that?

Belgium and Luxembourg have allowed advance directives in cases where somebody is in an irreversible state of consciousness. Would an irreversible state of consciousness satisfy your concern?

[Dr. Will Johnston]

My concern about advance directives stems, I suppose, partly from my experience as a family physician.

I have a lot of young patients in my practice who, in the course of a physical exam, show me pretty amazing tattoos in pretty amazing places. At the time they were applied, they were competent and gave consent and thought that's what they wanted. My problem with advanced consent in this situation is that I have this visualization of advanced consent being like a bad tattoo that follows you on through life. It's pretty hard to get rid of, because by the time you wish you could get rid of it, nobody knows you wish you could get rid of it.

All of those tramp stamps, or whatever you want to call them on people, are like advanced directives. I think that's a pretty close analogy: you're in one frame of mind and you make a decision, and who knows what's going to happen when you pass to another frame of mind?

I don't think it's a stretch to refer to cases of complete locked-in syndrome and coma, in which people have woken up and have reported that they were hearing not only every word that was said but were able to recount even such shocking things as abuse on their persons while they were supposedly unresponsive.

As hard as it may be, I think we must always stop ourselves from projecting our own disgust, real and human as it is, to disability onto others. There is no human being who deserves to be called at any time in their earthly existence a shell. There is no human being who deserves to be at any time in their earthly existence described as someone who should raise your disgust by the nature of the personal care that they have to receive.

Very kindly and good people, like Françoise and Nino, are involved in trying to give people what they want. I just want to caution the committee that it is very wise of the existing legislation to shy away from advance directives.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We're going to go to Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

I want to start with the Barreau du Québec, and particularly with Mr. Ménard, and to thank you very much, sir, for the very helpful testimony that you provided to the Senate-House committee, where you were one of our first witnesses. You were very valuable in explaining the Quebec experience and you've helped a great deal today.

I listened, I confess, in English to your remarks, and I took a few notes that I want to get your comments on.

You spoke about Bill C-14 being too restrictive. You said that the law is not based on the Carter principles, that it can be constitutionally challenged, that it's more restrictive than section 7, and you alluded again to a constitutional challenge. Then you spoke about “reasonably foreseeable” death, the expression in proposed paragraph 241.2(2)(d) that you said should be eliminated from the list of criteria. You indicated that it was too nebulous and that clarity needed to be provided in a definition that was so unclear.

What you've done is given us the same testimony we've heard from Professor Downie, from the east coast, and we'll be hearing on Thursday from the lawyer, Mr. Arvay, who argued the case from the west coast. You've talked to us from French Canada and English Canada.

There seems to be, among a lot of legal experts such as yourself, an acknowledgement that this is simply inconsistent with Carter. I'd like you to elaborate.

[Jean-Pierre Ménard]

There may actually be all sorts of reasons, moral or other, to think otherwise, but from a strictly legal standpoint, the bill as it is worded creates a very real problem. I am a practising lawyer and I have clients, including groups of disabled individuals. Some of those groups have asked us to consider this scenario. In such a fundamental bill, it is important to generate some legal certainty for Canadians. The standards and the rules of the game must be clear for everyone.

This bill proposes a standard to enable access to medical assistance in dying, but the issue, with all due respect, is that this is not the standard from section 7 of the Canadian Charter of Rights and Freedoms as set out by the Supreme Court in the Carter decision. When a more narrow standard is adopted to cover end of life and similar issues, the problem lies in the fact that a void is being created. In fact, those individuals who do not meet the end-of-life conditions included in Bill C-14, but who do meet the conditions related to grievous and irremediable illness from the Carter decision, want to have the right to access medical assistance in dying. The Supreme Court decision truly applied to those individuals.

The Supreme Court did base its decision on end-of-life criteria. It did not wonder whether the individuals were really at the end of their life. That is not a factor the court considered. It talks about people suffering from grievous and irremediable conditions, some of which may lead to a sooner end of life. When the court gave section 7 all its scope, it did so consciously, I believe, in order to ensure a broader reach than that ensured by the bill.

The problem is that, by setting limits as has been done in this case, there is a risk of overlooking some of the people who have the constitutional right to access medical assistance in dying. This bill will take away that right or force those who want to exercise it to start from scratch again before the courts, so that the Supreme Court would once again fill that void. Two, three or four years down the road, the House of Commons—Parliament—will have to amend its legislation again.

The Barreau du Québec does not feel that this is desirable, especially when it comes to individuals with a grievous and irremediable medical condition who would have to engage in a legal battle again. That is not what we should aim for as a society.

We can agree or disagree. The Supreme Court may have gone too far, but we are talking about the Supreme Court and the law of the land. We cannot ignore this for the sake of other principles.

As for the criterion whereby death must be reasonably foreseeable, we have a similar problem in Quebec, as well. In fact, the criterion whereby the individual must be at the end of their life is also being debated. We are in the process of applying the legislation, and there are issues with this. As the criterion can sometimes be too nebulous, the position may vary from one physician to the next. Some are saying that, to be considered at the end of life, people have to be dying, terminally ill, while others are talking about three or six months. It is clear that reasonably foreseeable death is an excessively vague criterion. For Canadians, it is important that legal standards be clear, applicable and easy to understand for everyone.

We have held a long debate in Quebec to decide whether it was desirable to establish a time frame—such as six months or three months. The issue is that medical science is unable to predict whether the time frame will be three months or six months, depending on the individual. Therefore, we have decided that it would be preferable to give physicians an opportunity to use their discretion.

However, the problem is that, with nebulous criteria, Canadians' rights become more or less elastic, and that leads to problems. Taking into account those problems, as well as the scope of the Carter decision, we have recommended that this criterion simply be removed from the legislation.