Justice Committee on May 2nd, 2016

[Chris Bittle, Liberal, St. Catharines, ON]

Perhaps the department is open to some level of clarification, because paragraphs (a) and (c) have to be read together, and if something is curable.... I understand what you're explaining in terms of the interpretation, but reading the plain language definition of it, it doesn't necessarily meet your interpretation of the bill.

Is the department open to a clarification in the legislation to be more explicit in your interpretation?

[William F. Pentney]

I think that government would be open to all carefully considered opportunities to improve the bill and would look forward to carefully study any amendments that would be proposed. I would suggest, based on all of my experience on legislative drafting, that trying to cover-off every eventuality through forms of wording will remain a challenge. If the word “incurable” were presumably to be replaced by “irremediable”, if that's a suggestion, then the question would be, would it provide greater clarity?

I'll leave that to others to consider.

[Chris Bittle, Liberal, St. Catharines, ON]

In terms of paragraph (b) referring to “an advanced state of irreversible decline in capability”, there have been critics who have said that if this paragraph were read, then Kay Carter would not have met this particular definition because she was not in a state of decline, that her particular condition was stable but was enduring suffering.

Is that at odds with the Carter decision?

[Joanne Klineberg]

Our understanding based on the court ruling of the circumstances of Kay Carter was that she was in a wheelchair and needed assistance for most of her daily functions, so her mobility was quite limited.

It's not really a provision of paragraph (b) that speaks to there being a change over time. It can be a state of advanced and irreversible decline and capability that occurred all at once, for instance. It isn't part of the requirement that there be continuing decrease in capability; it's only required that the person be in an advanced state of decline.

It might also be helpful to note that with all of these criteria, including what is an incurable illness, the decision-making on these elements has been left in the hands of medical and nurse practitioners. What is or is not an incurable condition may depend on a variety of factors, not just necessarily the name of the disease, for instance. There might be implications relating to the accessibility of treatments

However, if we come back to the “advanced state of irreversible decline”, it's also something that can take into account a whole host of considerations. A person might be in an advanced state of decline due to exhaustion, due to fatigue, due to frailty. Again, it's designed to be flexible in order for the medical and nurse practitioners to take everything into account.

[Chris Bittle, Liberal, St. Catharines, ON]

Could it be more accurate then if we put “or” into that paragraph, that “they're in an advanced state of their illness or a state of irreversible decline”?

Would that be more accurate in the interpretation of the department?

[William F. Pentney]

We can look at it. It's illness, disease, or disability, and it covers a very wide range of circumstances, some of which will have happened in a heartbeat and some of which will have evolved over many years. We could look at whether that would make it clearer.

It presumably would also introduce other uncertainties or other issues around what is an advanced state or advanced progression of an illness. However, we can certainly look at it, and, again, we look forward to the work of the committee and the recommendations coming forward from the committee.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I know we're running out of time, but Mr. Warawa had asked for two minutes. I'm going to let each party have one last question, a short question, if they want one.

Mr. Warawa.

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

Thank you, Chair.

On conscience protection, you said that the bill does not compel or require. You said that the Supreme Court said that we're to create a complex regulatory system. There has been a major focus, and rightly so, on vulnerable Canadians, but probably the number one issue we hear about as parliamentarians is to make sure that conscience rights are being protected. The legislation is silent on that. It does not compel or require, but it also does not protect.

It is possible, then, as we amend the Criminal Code of Canada to permit this, that we could also make it a criminal offence to coerce, intimidate, or force a physician against their will to participate. Is that not correct?

[William F. Pentney]

We would have to look at it. I'm not aware of the circumstances in which that is a concern. We'd have to look at it. I would say that in respect of the scope of federal jurisdiction under the criminal law, we would also be focusing on the extent to which provisions that are inserted would have practical legal effect, given the division of powers.

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

Examination by the provincial regulator, as you said, will continue, but we're talking about exemptions to the Criminal Code of Canada that under certain strict criteria will permit this.

Before, and even currently, it's legal to take your own life, but a person walking down the street cannot assist somebody to kill themselves. That's illegal. We're creating this strict regime, but you should also, then, not force somebody by intimidation, by coercion, or in any way to participate in the death of that individual against that person's will. My understanding is that such a restriction could be included in the Criminal Code; otherwise, we would hand it over to the provincial colleges of physicians, and the approach would not be pan-Canadian. It could be a totally different approach if we allowed each province to protect conscience rights.

I believe we do have the power and the authority to put within the Criminal Code the stipulation that you cannot coerce or force anybody to participate in the death of another person, to commit assisted suicide, against their will.

[William F. Pentney]

If it's the committee's wish, in terms of the completion of the study, we can certainly look at that.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. We appreciate that.

The issue of conscience rights has been raised by a number of people. I think Mr. Falk, through his original question, was trying to ask you, if protection of conscience rights is important to the committee, what solution you would propose to make that fall within the law in the best possible way. One way suggested by Ms. Khalid was to make a criminal prohibition, and if there are others, we'd be delighted to hear about them before we move to our clause-by-clause deliberation.

Mr. Rankin, did you have a last question?

[Murray Rankin, NDP, Victoria, BC]

This is just a drafting question, I believe.

I mentioned to the ministers that our recommendation at this special joint committee was that there always be one medical practitioner and perhaps a nurse practitioner. We're very sensitive to the need for access in remote parts of Canada, but as I read Bill C-14, it in every stage refers to “medical practitioner or nurse practitioner”. It would appear that this will be the only jurisdiction in Canada—and I'm not saying this is wrong, but I want clarification from officials—where a physician-assisted death could occur without the involvement of a physician. Am I reading the bill correctly?

[Simon Kennedy]

I think, Mr. Chair, as the ministers explained, in the various jurisdictions the provinces delineate in certain cases certain functions that are delegated to nurse practitioners that would normally be performed by a doctor. I think the thinking here was that it will really be up to the provincial medical regulatory authorities to determine whether they wish, with the appropriate kind of guidelines and parameters, to delegate those responsibilities to nurse practitioners.

[Murray Rankin, NDP, Victoria, BC]

Mr. Kennedy, just to be clear, you're saying to us that a province could choose to make this service available with two nurse practitioners and the intervention of not a single physician. Is that correct?

[Simon Kennedy]

To the extent that a province would delegate this function to a nurse practitioner, it would only be within the scopes of practice that are available to nurse practitioners. In other words, it's not that all nurse practitioners and all nurses get to do this by virtue of the federal legislation; it is only where a province has chosen to delegate physician-like powers to nurse practitioners. That's a specific provincial decision. Provinces do that in some circumstances.

[William F. Pentney]

You are correct that it is conceivable. Where a nurse practitioner has been the one providing ongoing care in remote communities that we know exist from coast to coast to coast, where that's been delegated and authorized by a province, it is conceivable that under the law, if it's passed as it stands, that it could be two nurse practitioners. It could be that there wouldn't be a requirement for one nurse practitioner and a physician.

[Murray Rankin, NDP, Victoria, BC]

It was our recommendation at the committee that there always be at least one physician, no matter how remote, but you're opening the door to.... Is this the only jurisdiction in the world that would have two nurse practitioners able to provide this service?

[William F. Pentney]

Yes, I believe we would be the only jurisdiction in the world, and I believe that the scope of what nurse practitioners do is not commonly shared throughout the world either.

[The Chair, Liberal, Anthony Housefather]

Then would it be within the realm of possibility, if this committee decided to amend the bill, that it would be perfectly possible to say that if the first person providing medically assisted dying is a nurse practitioner, the second opinion must come from a medical practitioner? Could we do that?

[William F. Pentney]

If that's the committee's recommendation, that would be considered by the government and it would ultimately be determined. As you hear from other witnesses trying to consider the implications, practical access, continuity of care, and familiarity with the individuals and their circumstances would all be elements worthy of consideration.

[The Chair, Liberal, Anthony Housefather]

That's understood.

Mr. Fraser has the last question.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much, Mr. Chair.

Paragraph 127 of the Carter decision includes the remedy provisions. It states “a competent adult person who clearly consents...”. In your opinion, when an individual clearly consents to medical assistance in dying in order to have access to this procedure, could an individual clearly consent in advance, or is the idea of advance directives incompatible with “clearly consents” in paragraph 127 of Carter?

[William F. Pentney]

It's not prescribed or detailed by paragraph 127. The issue and the considerations that certainly have manifested themselves in the studies of the provincial-territorial advisory committee, the external panel of the special joint committee, went beyond what was before the court in Carter. It is our understanding it was not any of the individuals who had dealt with it. In that sense, Carter didn't address it.

[The Chair, Liberal, Anthony Housefather]

I would like to take this opportunity to thank all the people from the Department of Justice and the Department of Health who joined us here today. It was most helpful to have you here. We really appreciate it. We look forward to continuing the dialogue.

We're going to take a five-minute break, a health break, so people can get some food, and we will resume with the next panel in five minutes—oh, we've been asked for 10 minutes, so we'll start the next panel in 10 minutes, since we can finish at any time. We'll start the next panel a little later.