Justice Committee on May 2nd, 2016

[Murray Rankin, NDP, Victoria, BC]

I'd like to ask you another question that didn't come up in your remarks, but it is one that my colleagues have asked about: the conscience rights of physicians. I believe that when you were on television in Quebec—I heard this second-hand, so I may have it wrong—you indicated that it would be a purely provincial jurisdiction.

Would you elaborate on that if I've got it right?

[Jean-Pierre Ménard]

This issue seems extremely relevant to me. Conscience rights do not fall under criminal law. In medical practice and in professional practice, conscience rights are primarily a matter of medical ethics. The medical community determines how physicians should interact with patients and behave. In my opinion, it's a mistake to consider conscience rights part of criminal law. Those rights fall under medical ethics and provincial laws that also govern medical practice. The bill does not cover this, and I think that is a wise constitutional decision.

In Quebec, the Act respecting end-of-life care provides for very clear conscience rights. The physicians' code of ethics also sets out very clear rights. Those rights are similar from one province to another. However, a federal conscience right could be different from provincial conscience rights, and that would cause issues in terms of which standard the physician should follow. To my mind, it would be preferable to let each province's college of physicians define the standards of behaviour for physicians. So I invite you, with all due respect for Dr. Johnston, to keep the door closed to this kind of a situation.

In its initial proposal, the Barreau du Québec had written a comment about this, but since this issue was not part of the bill, we have removed it. However, I want to reiterate our point of view. We invite you to leave the regulation-making authority to the provinces and to colleges of physicians. The provinces are already regulating medical practice. I think we already have our hands full with the rules of criminal law, so let's not go any further.

[The Chair, Liberal, Anthony Housefather]

I now give the floor to Mr. McKinnon.

Mr. McKinnon will have the floor for four minutes, and will give up his last two minutes to Mr. Thériault, who will have an opportunity to ask you questions.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Thank you, Chair. There are many questions to ask and a lot of excellent witnesses.

I'm going to focus on Barreau du Québec because you are the first legal organization we've spoken with outside of the justice department.

The Department of Justice and the ministers are quite certain and quite confident that Bill C-14 is charter compliant and fully fulfills Carter. I take it that you are not in agreement with either of those assertions.

You talked about some of this already, so I'll focus on one small aspect in particular.

The definition of a grievous and irremediable condition includes a requirement for the patient to be in an advanced state of irreversible decline. Do you think that this is mandated by Carter and do you think it's an appropriate condition?

[Jean-Pierre Ménard]

That was not a criterion established in the Carter decision. That criterion was added on. The Carter ruling provided no definition, and the Supreme Court's decision not to go too far on that issue was probably deliberate.

The notion of irreversible decline is a new criterion, and it is more limiting than what is set out in the Carter ruling. That being said, this criterion could be more easily managed than the criteria proposed in paragraph 241.2(2)(d), which talks about reasonably foreseeable death. When we decide that the grievous and irremediable illness must cause a certain decline before physician-assisted dying becomes accessible, let's just say that we are walking on a tightrope. Ultimately, without wanting to be too strict, we could let this criterion slide, but I don't think it is a criterion from the Carter decision. To strictly apply the Carter ruling, we should limit ourselves to paragraph (1) and forget the entire paragraph (2) of provision 241.2. Initially, we considered removing the entire paragraph (2). That paragraph introduces a number of criteria that are not part of the Carter decision, but the criterion of reasonably foreseeable death feels like the most important aspect to me. As for the irreversible decline criterion, I must admit that we are walking on a tightrope. In addition, that criterion does not come from the Carter decision.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

Regarding reasonably foreseeable death, you indicated there should be a much clearer legal standard for what that means. The minister indicated that it was really a medical decision, not a legal question.

Would you care to comment on that?

[Jean-Pierre Ménard]

It is clear that the issue lies in the fact that physicians expect the law to define all the situations in detail. However, the more law defines situations, the more it limits them. We have to be careful about that, as well. Given the extreme variety of situations, it is difficult to have a definition that would apply to each and every case.

It is important to give patients a certain margin of discretion in their relationship with their doctor. Key parameters and a framework to assess situations will be established. In Canada, we have to trust medical practice. We especially have to trust patients' discretion and autonomy. This piece of legislation is first and foremost about patients' rights. This entire process is an extension of patients' rights—their right to control their life and especially to control when they want to die and how. This piece of legislation does not really give physicians or health establishments powers or rights. It is made for patients.

As long as patients are conscious and competent, as long as they can make decisions, are well informed about their situation and are taking action based on that, the definition of all the medical conditions and variables need not go too far. The more details are provided, the more situations are excluded.

This is exactly what is happening here. The proposed subsection 241.2(1) talks about the Carter criteria, but by defining them in the proposed subsection 241.2(2), many people are already being excluded. We have to be extremely careful and not try to take things too far. We have to trust Canadian citizens, patients and physicians. By implementing appropriate control and oversight measures, we can reassure ourselves as a society.

[The Chair, Liberal, Anthony Housefather]

Thank you.

With Mr. McKinnon's permission, we will move on to Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

Do I have two minutes?

[The Chair, Liberal, Anthony Housefather]

Yes, you have two minutes.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

Ultimately, the Quebec legislation is based on two premises.

Here is the first one. Don't we all want to cross the threshold of death calmly, to let go without fear of suffering, without suffering? Is that not what we would wish for others?

The other premise is the following. We harm an individual's dignity by harming their self-determination; it's not a matter of diapers. The other principle is self-determination. The law considers this principle during our life, while we are healthy. So why would that self-determination principle be taken away in a moment as intimate as our own death? My neighbour won't be dying in my place or wanting to do so.

Those two principles give rise to the Quebec piece of legislation titled An Act respecting end-of-life care, which did not cover assisted suicide. The reason I am stressing that fact this afternoon is that there is a problem with conceptual confusion between euthanasia and physician-assisted death during the final stage of life. Whether we are talking about six months or a year, the fact remains that the process toward death is irreversible. We are then no longer talking about healing, but rather about the right to die and about palliative care. The request to die always emerges during palliative care, and rarely before.

The court is now asking us to provide a framework for assisted suicide. The criterion in question is that of natural death. There has been a lot of talk today about reasonably foreseeable death, but there is an even more nebulous term—reasonably foreseeable natural death. But is death in palliative care natural? To my knowledge, a patient in palliative care dies from whatever they are given to manage the pain. One last dose, even if it is not lethal, will end up stopping the heart. In that case, can we talk about natural death?

I could talk about this for a long time, but I want to ask some questions.

The Quebec legislation does not provide a time frame. In this case, we have talked about a time frame of 15 days. For all sorts of reasons, I feel like this is a dubiously drafted version of the Quebec legislation. Would you be open to adding an equivalency clause, as Professor Hogg was suggesting?

If this piece of legislation was adopted as is, it would lead to peculiar situations for Quebec. For example, the Quebec legislation does not talk about nurse practitioners or other health professionals. Would you agree with adding an equivalency clause to the legislation? That way, if the federal minister was convinced that a province or a territory has implemented the necessary guarantees equivalent in substance to the federal guarantees, the federal legislation would not apply. Would it not make more sense to do that?

[Jean-Pierre Ménard]

First of all, you have to understand the meaning of the Quebec legislation. I was very closely involved in that process. The objective of that piece of legislation is to regulate all of end-of-life care. That legislation does not come under criminal law, but under health. It covers all end-of-life care practices, including palliative care, physician-assisted death, advance medical directives, and so on. The legislation's objective is slightly different from that of the bill we are debating.

Before us is a bill that aims to amend the Criminal Code in the context of physician-assisted death, which was more broadly defined by the Supreme Court than by the Quebec legislation. In terms of equivalence, this bill is not the federal counterpart to the Quebec legislation—that much is clear. The Quebec act has a more restrictive objective.

Furthermore—and I'm saying this with all due respect for the federal legislator—many measures found in Bill C-14 are cut and pasted from the Quebec legislation in certain aspects. That's adequate, as that piece of legislation was not misguided, either. However, the issue you are raising seems relevant to me. To the extent possible, we have to avoid regime duality and Quebec citizens having to deal with two legal standards regulating their decisions once the legislation has been adopted.

If someone wants to have access to assisted suicide, it's impossible under the provincial standard, but it could be possible under the federal legislation. The procedure is slightly different. It is probably important to hold back a bit by stating that the Government of Canada can exempt a province from certain formalities or give it some flexibility when it comes to specific aspects of the legislation. However, in terms of the substance, it cannot go too far, as the intention must be compatible with the Supreme Court's decision, as well as with section 7 of the Canadian Charter of Rights and Freedoms and the rules we are currently establishing in committee.

[The Chair, Liberal, Anthony Housefather]

Mr. Thériault, you have enough time to ask a quick question.

[Luc Thériault, Bloc, Montcalm, QC]

In the Carter decision, the Supreme Court claims that the right to life is affected, in the sense that this would force people with a degenerative condition to precipitate their death through suicide, although they are not at a point where they would need help. However, it is important to note that people with a degenerative condition are not suicidal. They want to live as long as possible, until they can no longer handle the state they are in, and their state can decline quickly from evening to morning. They want parliamentary legislators to assure them that, at that point in their life, someone will take care of them properly.

[Jean-Pierre Ménard]

Those are significant problems. In the Carter decision, the Supreme Court was targeting that kind of a situation, while the bill under consideration seems to exclude it. This is a considerable limitation, and that is why we invite you to reconsider the issue. Of course, this kind of a decision is up to the legislator. We will apply whatever you decide. We will live with it and make sure that it is accessible to Canadians as much as possible.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony.

We really appreciate all your presentations. We learned a lot.

We have an in camera session of the committee right now, so I would kindly ask everyone to quietly leave the room in the next minute or two so that we can proceed with our in camera session.

[Proceedings continue in camera]