Justice Committee on May 2nd, 2016

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

I know that the Civil Marriage Act has been brought up a number of times. That provided that religious officials would not have to serve a specific community in marriages. We're talking about doctors serving the public at large. It's the jurisdiction of the provinces and territories to ensure the regulation of the conscience rights of medical practitioners. Nothing in our legislation as you know would compel a medical practitioner to perform medical assistance in dying.

[The Chair, Liberal, Anthony Housefather]

If I could wrap up by asking a question, Ms. Khalid suggested with regard to the question by Mr. Cooper that the Criminal Code could be amended to prohibit anyone from coercing a medical professional to perform physician-assisted suicide. I presume that you would agree that this prohibition could exist in the Criminal Code. The regulations may be provincial and territorial, but could that theoretically exist?

[Jody Wilson-Raybould, Liberal, Vancouver Granville, BC]

Renovation of the Criminal Code is something that we are addressing in a comprehensive way. I'm not sure that the question is raising a particular issue that couldn't already be addressed in the discussions we're having with the provinces and territories. Certainly with the questions that have been raised here, we'll take a look.

[The Chair, Liberal, Anthony Housefather]

To wrap up on the issue of reasonably foreseeable death, as you know all the U.S. states that have that concept require the medical probability of death to occur within a certain time frame. The States uses six months. Minister Philpott mentioned that you could have thought about one year.

Would it seem to you to be congruent with the the court's decision in Carter and be compliant with section 7 should the committee in its wisdom decide to propose an amendment to the legislation to put in a time frame in which death could reasonably be foreseen?

[Jane Philpott, Liberal, Markham—Stouffville, ON]

I would encourage you to ask that question of health care providers as they come before your committee. My sense from to what I've been hearing from people is that they prefer the language of “reasonably foreseeable” death, that it actually speaks to professional judgment better than, “Is this person going to die within six months?” It's actually a harder question for people to be able to ask if they have to put a time frame around it.

I would encourage you to continue to ask that, and if you hear differently, please let me know.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

On behalf of all members of the committee, I'd like to thank both ministers for having spent so much time with us. It is incredibly appreciated. The dialogue about how you came to this proposed legislation and all the efforts you made to get there has been tremendously appreciated. Thank you so much.

We'll now take a few minutes to get our next panel set up.

[The Chair, Liberal, Anthony Housefather]

I am now more than delighted to welcome a panel from the Department of Health and the Department of Justice. We have a large number of very distinguished colleagues, including Mr. Pentney and Mr. Kennedy, who were on our last panel. From the Department of Health, we are joined by Abby Hoffman, assistant deputy minister, strategic policy branch; Helen McElroy, director general, health care programs and policy directorate, strategic policy branch; and Sharon Harper, manager of the chronic and continuing care division. From the Department of Justice, I see Joanne Klineberg, the senior counsel, criminal law policy section; Laurie Wright, the assistant deputy minister, public law sector; and Jeanette Ettel, senior counsel, human rights law section.

Welcome, all of you. I'm wondering if anyone has any statements before we move to questions. No.

We're therefore going to move straight to questions. This is our first round and we will go to the Conservatives first. Who's going first from the Conservatives?

We have Mr. Falk, and then we'll go to Mr. McKinnon.

[Ted Falk, Conservative, Provencher, MB]

Mr. Pentney, I'm going to start with you, because you were here for the presentations, and I want to follow up a little bit more on the whole issue of conscience rights protection.

I think it's an issue that's important to a lot of folks right across Canada and to members of this committee, and we want to see if we can somehow address that. I'd like your comments and feedback on what is possible, from a legal perspective. If we were to draft something like that into the bill, what would it look like? Where would it belong? How can we do it?

[William F. Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice]

First, I would say, as the two ministers indicated, that the government has very much acknowledged that protection of conscience rights is an important consideration in moving forward with this. Also the Supreme Court of Canada obviously acknowledged that among the various rights and interests to be balanced, the conscience rights of physicians and medical practitioners are an important consideration. As the two ministers indicated previously, nothing in the bill compels or in that sense coerces a medical practitioner to be involved in this. The government has announced, and Minister Philpott confirmed today, the intention to continue discussions with provinces and territories about ways in which access to care can be facilitated and information can be provided, and that will be one element of a discussion around the ways in which conscience rights can be protected. Mr. Kennedy and others can speak to this if you wish

Although the Supreme Court has acknowledged that health care is a concurrent jurisdiction, what's under discussion is an exercise of the criminal law power by the federal Parliament. This bill is not about regulating medical or health professionals or institutions. This is about an exemption that is being created in the criminal law, which has been a focus of attention in response to the way the case was framed in the Carter decision and the way the case has been brought before Canadians, going back to the Rodriguez case. In all of that, the consideration was the focus of the bill. The way in which the bill is constructed, it's designed not to require or compel any medical practitioner, doctor, or nurse practitioner to be involved in this, and as Minister Philpott indicated previously, the government's commitment is to continue those discussions with provinces and territories to try to “find pathways to care.” I think that's the expression.

I hope that responds to the question.

[Ted Falk, Conservative, Provencher, MB]

Well, it responds but it wasn't really the answer I was looking for. I was hoping to hear you say that we should draft something into the legislation that would provide protection for health care individuals so they're not coerced into assisting, and so there's a protection for them as well, because there's a fear among health care professionals that they're not going to have a choice. Not just at the physician level, but downwards from there as well, there is a fear that individuals who are currently tremendous and wonderful individuals who are providing excellent health and palliative care are going to be forced to participate in a physician-assisted suicide procedure.

[William F. Pentney]

Thank you for the question. I fully understand, and we have observed the debate as it has unfolded and continues to unfold in provinces and territories with medical regulators, with physicians, and with others across the country.

The bill does not compel or require anyone to provide the assistance. It opens an exemption in the criminal law to protect those who are providing medical assistance to individuals who fit within the criteria as established in the bill from what would otherwise be criminal liability. That's the nature and scope of the bill and the intention of the government.

There are a variety of other regulatory matters, medical professionalism and other issues, associated with this. We know from discussions on our side and certainly from the Health Canada discussions with provinces and territories that medical regulators, provinces, and territories are actively engaged in looking at their dimensions of this issue, and we've no doubt that examination will continue.

[Ted Falk, Conservative, Provencher, MB]

I'm going to keep on that. I don't want to let it go just yet, because I think we could be preemptive. While we have the debate going, and while the discussion is open, I think we could be preemptive. Rather than leaving it to the territories and the provinces to come up with their own regulations and maybe create a problem for health care officials, why don't we address that issue right now, up front, with the legislation we're looking at?

[William F. Pentney]

I think in respect of the exercise of the criminal law power in defining the nature and scope of eligibility and safeguards, the law is clear. I think the government's commitment to complementary and additional measures and discussions is also clear. I think from the perspective of the way in which the law is constructed, it is constructed explicitly not to compel or require anyone to provide assistance in dying.

[Ted Falk, Conservative, Provencher, MB]

Minister Philpott talked a lot about palliative care. Studies show that when there's a gold standard of palliative care available for individuals in end-of-life situations, and also in terminal illness situations where there's extreme discomfort, if it's mitigated by a good palliative care system, the need and the desire for physician-assisted suicide is just about non-existent. Could you comment further on that and what we can do from a palliative care perspective?

[Simon Kennedy, Deputy Minister, Department of Health]

I think what I would do, Mr. Chair, is just reiterate the minister's commitment to pursue this. The government's committed to negotiating a new health accord with the provinces and territories. One element of the conversations we're having with the provinces and territories right now is about how we can work to expand the palliative care services that are available. The minister has certainly given us direction as a department to make this a real priority. This is something we'll hopefully be able to get agreement on with the other governments to make an investment in this area. It is a big priority for us, and hopefully we'll be able to have more news in the months to come on that.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

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

I believe that my questions will mainly be addressed to Ms. Klineberg. I'm not playing favourites, but it seems to me that criminal law policy is what this is about.

I'm talking about proposed subsection 241(1). The original act specified in paragraph (b) that it was an offence to aid or abet a person to die by suicide. In this new act, the provision for abetting has been moved into paragraph (a), and aiding a person can be allowed under the framework established for medical assistance in dying.

But to me, looking at the word “abet”, it implies assistance as well. I'm wondering, in the case where a charge under proposed paragraph 241(1)(b) would not be sustainable because it's a medical assistance in dying situation, what's to prevent a charge from being laid under (a), for abetting a suicide?

[Joanne Klineberg, Senior Counsel, Criminal Law Policy Section, Department of Justice]

There is jurisprudence under the Criminal Code that has interpreted the concept of abetting an offence to take place. Though in the dictionary definition “abetting” can mean “aiding” and also “encouraging”, the interpretation that the courts have most consistently given to the word “abetting” is that it means “encouraging” in the criminal law context. Otherwise, it would simply be replicating “aiding”, for instance. It's interpreted to have a different meaning.

This is consistent throughout the criminal law, not just in the context of this particular offence. The idea was that because abetting a person to die by suicide would actually be interpreted as encouraging them, which is much more consistent or analogous to the concept of counselling, which is also inciting and promoting and that sort of thing, abetting a person to die by suicide was relocated into paragraph (a), where it's situated next to the concept of counselling. As I mentioned, these two things are more similarly associated with each other, and it also allows for the exemptions to be cleanly applicable to “aiding”, which is in the provision of the substance that the person would use, without leaving the impression that it could be exempted from criminal liability to encourage a person to die by suicide.

So by moving “abetting” into paragraph (a), and making the exemptions applicable only to (b), which now is limited to “aiding”, the legislation is distinguishing between moral support and moral encouragement from the physical assistance.

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

Fair enough, but it seems to me that the Criminal Code also holds “counselling” as encouraging or inciting. Is it not redundant to also include abetting in there?

[Joanne Klineberg]

They're definitely quite similar concepts. There is a definition of “counselling” in section 22 of the Criminal Code, I believe, which contains some more verbs and concepts that are quite similar to “counselling”. Counselling might require something a little more pointed than encouraging. They're definitely similar concepts. In criminal law, sometimes there are similar concepts and we use different words for them to ensure that the full range of conduct is conveyed.

There's a similarity and perhaps some overlap between “encouraging” and “counselling”, but they wouldn't be exactly the same thing.

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

I've also been hearing representations from people such as social workers who are concerned about giving information, advice, and whatnot around grief counselling and the options that are available to a patient in a circumstance where they're enduring suffering. Their concern is that this kind of advice would constitute counselling.

I'm wondering if you or any other members of the panel would suggest that there should be a provision in the Criminal Code to exempt advice that does not rise to the level of recommendations or urging as being excluded from counselling.

[Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice]

When the legislation is passed, providing medical assistance in dying will become a legal activity. Providing information to a person to engage in a legal activity is legal, so there's no need to basically put in law that it is legal to provide information to tell someone to do something that is legal.

If you provide information as to how to undertake a legal activity, as to how to find out how to obtain the medical services of medical assistance in dying, that is legal. It's self-evident, so you don't have to say it.

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

Okay, fair enough.

[The Chair, Liberal, Anthony Housefather]

You have 20 more seconds.

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

Thanks to all of you.