Justice Committee on May 3rd, 2016

[The Chair, Liberal, Anthony Housefather]

Welcome to this meeting of the Standing Committee on Justice and Human Rights.

For those of you on video, hello. My name is Anthony Housefather. I'm the chair of the committee. I'll be introducing you to people as we take their questions, going forward, but you can rest assured that you have all of the Liberal members, the Conservative members, the NDP members here with you, and we're all very anxious to hear your testimony. Thank you so much for joining us today.

Joining us today in the room we have one witness, Shanaaz Gokool, who is the chief executive officer of Dying With Dignity Canada.

Welcome.

On video, we have three groups. We have from London, Ontario the Christian Legal Fellowship represented by Derek Ross, the executive director, and Jonathan Sikkema, associate counsel.

Welcome.

From Toronto we have the Coalition for HealthCARE and Conscience, represented by Cardinal Thomas Collins, who is the archbishop of the Archdiocese of Toronto, and Laurence Worthen, who is the executive director of the Christian Medical and Dental Society of Canada.

Welcome.

Finally, we have the Canadian Civil Liberties Association, represented by Cara Zwibel, who is the director of the fundamental freedoms program.

Welcome.

Given that we are going to go to the video first, we want to make sure we take it in time. You all have eight minutes to deliver your remarks—we have four groups each with eight minutes—following which you will receive questions from all of the members of the panel, rotating between six minutes to the Conservatives, six to the Liberal, six to the NDP, six to the Liberals, and you can go back and forth with the questions.

We will start with the Christian Legal Fellowship.

Mr. Ross and Mr. Sikkema, please go ahead.

[Derek Ross, Executive Director, Christian Legal Fellowship]

Good afternoon.

Thank you, Mr. Chair.

I am Derek Ross. I serve as executive director and legal counsel to the Christian Legal Fellowship. With me is Jon Sikkema, associate legal counsel at the CLF.

We wish to thank this committee for affording us the opportunity to make these submissions.

CLF is a registered charity and a national association of more than 600 legal professionals who share a commitment to the Christian faith. As an organization of lawyers, we seek to advance justice and the public good by drawing attention to fundamental principles of law.

One of those core principles is the sanctity of life, which the Supreme Court recognized as one of our most fundamental societal principles in Carter. That principle affirms that every person's life, no matter how old, disabled, or infirm the person may be, has inherent equal worth and value.

As the Supreme Court recognized in Rodriguez, the active participation by one individual in the death of another is intrinsically, morally, and legally wrong. That principle, expressed by Justice Sopinka, was not challenged or overturned in Carter, although Carter does now allow a legal exception to it in certain circumstances.

The challenge for us, and for you the committee and for Parliament, is the question: how can we best protect and preserve the equal value and inherent worth of all people in a post-Carter Canada?

We have framed our submissions in answering that question on the presumption that Parliament will legalize euthanasia and assisted suicide, which we'll refer to as MAID, in certain circumstances, although there are other and in our view more appropriate options available to Parliament, which we've explained elsewhere.

However, because the bill before this committee takes the path of legalization, we urge Parliament to be forward-thinking and to proactively guard against some of the negative impacts, perhaps unforeseen and unintended, that Bill C-14 might have—negative impacts that can be at least partially reduced with certain amendments that we and others recommend.

We urge Parliament to consider the following questions.

How will the legalization of MAID affect our societal attitudes towards suicide?

How might it contribute to normalizing suicide as a choice-worthy option, not just in the MAID context, but generally?

We know that the drafters of Bill C-14 are attuned to this issue, as the preamble acknowledges that suicide is a public health issue, not just a private one, and the Department of Justice's background paper also says that MAID is not being made available in wide circumstances, because that could undermine suicide prevention initiatives and normalize death as a solution to many forms of suffering.

The government is right to be concerned about those potential consequences and needs to be even more deliberate in guarding against them. We need to protect the efforts of physicians, health organizations, and charities to prevent suicide. We are concerned that such groups may avoid steering individuals away from suicidal ideations for fear that they will be seen as interfering with MAID or access to it.

This is evident in Quebec, where the college of physicians recently discovered that emergency room doctors were allowing suicide victims to die, when life-saving treatment was available. In media reports, the legalization of assisted death in that province was cited as creating ambiguity about the need to intervene. Parliament must eliminate any such ambiguity here and play a lead role in combatting the normalization of suicide.

What specifically can this committee do within the framework of this bill?

We say that Parliament should specifically affirm in the preamble to Bill C-14 that suicide prevention remains an important public policy goal. In addition, the preamble should state that sanctity of life remains one of Canada's most fundamental societal principles; that it is not contrary to the public interest to express the view that participating in causing a person's death is intrinsically, morally, and legally wrong; and that MAID should be considered only as a last resort, not as a measure to be presented to patients as just another treatment option among others.

This, in our view, is an important means of sending a clear signal, even if Parliament chooses to allow MAID, that MAID is not to be seen as a new normal medical response to suffering or even just as one option among and equal to others. This also means that Parliament should protect the charitable status of organizations devoted to preventing suicide as well as religious organizations and health care facilities that decline to provide MAID at their facilities, and should do so through clear amendments to the Income Tax Act, which we set out in our brief.

These amendments will serve to promote freedom of religion, conscience, and expression, but just as importantly, respect and preserve a medical and societal culture in which treatment is promoted as a solution to suffering, not suicide.

Similarly, we need to protect patients from being pressured to obtain MAID. Counselling or abetting a person to commit suicide will wisely remain illegal under this bill. This provision, section 241(a), addresses suicide only, and does not seem to address things like voluntary euthanasia, which is considered homicide and not suicide. This may be a drafting error, but either way it must be remedied. The reality is that patients will face external pressures to obtain and receive MAID. Bill C-14 acknowledges this. Under the legislation, as drafted, when this happens, the only consequence is that a patient may be considered ineligible for MAID, and only if the patient's doctor determines that the request was made because of, and a result of, that external pressure. Even if the physician determines that the patient was ineligible, the patient can still seek MAID from another physician, potentially under continued pressure from that same third party. The second, or tenth, or twentieth physician may fail to detect the external pressure on the patient. With respect, this is a significant oversight that leaves even the most malicious and prolonged forms of pressure and coercion seemingly free of prosecution. We recommend specific provisions to remove any ambiguity in this regard, and make it an offence to counsel, encourage, intimidate, or coerce a person to die by suicide or homicide, including euthanasia.

We also urge Parliament to explicitly protect the rights of those who object to participating in MAID, such as health care providers. I know others will be speaking to that matter this afternoon. In legalizing euthanasia, Bill C-14 places the most vulnerable members of society at risk. CLF endorses the recommendations contained in the Vulnerable Persons Standard. In addition, we recommend a number of amendments to Bill C-14, to protect the most vulnerable from abuse, which are set out in our brief. It is our submission that the court's ruling in Carter does not preclude Parliament from doing any of these things, and all of these provisions and amendments are necessary, not only to protect the vulnerable, but to preserve a culture that celebrates the equal and inherent value of every life.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's much appreciated.

We will now move to the Canadian Civil Liberties Association, Ms. Zwibel.

[Cara Zwibel, Director, Fundamental Freedoms Program, Canadian Civil Liberties Association]

Thank you.

Mr. Chair, members of the committee, on behalf of the Canadian Civil Liberties Association I want to thank the committee for the invitation to make submissions on Bill C-14.

The CCLA fights for the civil liberties, human rights, and democratic freedoms of all people across Canada. Founded in 1964, we are an independent, national, non-governmental organization working in the courts, before legislative committees, in the classrooms, and in the streets, protecting the rights and freedoms cherished by Canadians and enshrined in our Constitution. CCLA's major objectives include the promotion and legal protection of individual freedom and dignity, and for the past 51 years we have worked to advance these goals.

Like many of the groups and individuals you may be hearing from, the CCLA was an intervenor in the Carter case. We argued in that case that the absolute prohibition on medically assisted death was a violation of section 7 of the charter that could not be upheld. The Supreme Court's decision clearly affirmed that this is the case and recognized that to deny assistance to individuals who were suffering from grievous and irremediable medical conditions violates their most basic rights.

The government's decision to table Bill C-14 recognizes the need for national legislation on this issue, and to a certain extent, some of the provisions in the bill are in our view in line with the court's decision.

We have concerns about some aspects of the bill, and in our view it suffers from at least one significant and fatal flaw. That is where I will begin to focus my submissions.

The bill defines who is eligible for medical assistance in dying by requiring a “grievous and irremediable medical condition”, and that language is in keeping with the court's language in Carter. But the bill goes on to define the criteria required for establishing that condition by stating that the individual's

natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.

In our view, this requirement is not in keeping with the language or spirit of the court's decision in Carter. The focus of the ruling was on suffering and quality of life, not quantity. The reasonable foreseeability requirement will cause confusion, is unnecessary, and in our view should be removed. It's a clear departure from the court's decision and one that needs to be acknowledged and addressed by this committee.

The language of reasonable foreseeability is vague in the context of life and death: the death of every human being is reasonably foreseeable. Presumably this requirement connotes some proximity to a natural death, yet it's very unclear how this will be interpreted or assessed.

Adding to the confusion, the government has released background documents and the minister has made speeches suggesting that this requirement should not be a barrier for individuals such as Kay Carter, who suffered from spinal stenosis and was one of the people at the centre of the Carter case. Those explanations and justifications in our view do not sit comfortably with the bill's actual language.

If the government doesn't intend to create a barrier here, Parliament should amend the legislation accordingly. We have included a specific recommendation on this point in our written brief.

In particular, we propose that proposed subsection 241.2 (2) of the Criminal Code be amended to delete its paragraph (d) so that its remaining paragraphs would form the exclusive criteria for establishing a grievous and irremediable medical condition. We've included some language that we think should be added for greater certainty.

The second point I want to briefly address is the bill's exclusion of mature minors and its failure to allow for advance requests.

While the government's introduction of the bill was accompanied by a commitment to engage in further study on these issues, we are concerned that this further study will mean delays and suffering for individuals.

As I think we all know, the assisted dying issue is a controversial one. Parliament has in the past been unwilling to address the issue without the impetus of a judicial ruling. The fact that the Supreme Court's decision in Carter does not squarely address mature minors or advance directives does not in our view diminish the government's or Parliament's obligations to respect charter rights or to guard against needless suffering.

In CCLA's view there is no principled reason to distinguish between mature minors and competent adults, since the definition of a mature minor is someone who has been assessed to be capable of making a particular treatment decision. Amendments, in our view, should be made to allow for advance requests for medical assistance in dying where an individual is otherwise eligible. We see no principle basis to exclude an advance request when such requests are already permitted to allow an individual to consent to termination of life-sustaining treatment.

The third point I want to address is a smaller one, and it relates to one of the safeguards that's included in the bill, which dictates that a person's request for medial assistance in dying is signed before two independent witnesses. The bill goes on to exclude certain individuals from acting as independent witnesses. To be clear, CCLA doesn't object to this kind of safeguard in principle, but looking at the language of the safeguard, and who is excluded from acting as an independent witness, we are concerned it may be difficult to find individuals to fulfill that function. I am not sure how Parliament can best address this issue. It might be included in terms of a regulation-making power for the Minister of Health to address the permission of witnesses. We appreciate there are division of power issues here, but I did want to bring that issue to the committee's attention. In our view, failing to address it could pose a practical barrier for the effective implementation of this legislation.

Finally, I'd like to address a question in terms of the process before this committee. Witnesses invited to submit briefs to this committee were given very little notice and advised to keep written submissions brief. I appreciate your sitting tonight for a marathon meeting, and that a number of the meetings over the next few days are quite lengthy, but the committee is only spending four consecutive days on this important issue. The limits that are placed on the scope of submissions being made and the truncated timeline for consideration of the bill is cause for concern. We appreciate there was significant work done by the federal external panel, and by the interprovincial advisory group, and the special joint committee of the issue of physician-assisted dying, but the reality is this committee is the first opportunity anyone has had to look at a piece of legislation, and consider it, and make submissions in relation to it. This is an issue on which every Canadian is a stakeholder, and a more robust process for considering the legislation is warranted. We say this because the CCLA believes that the fact the declaration of invalidity will take effect in early June creates a legal vacuum.

The Minister of Justice, in introducing this bill, has said the bill falls within the parameters of the Carter decision, but that if no federal legislation is in place on June 6, it's the parameters of that decision that will govern. While we do believe national legislation on the issue is important and beneficial for a number of reasons, this doesn't mean we should rush to enact a law that hasn't been sufficiently considered through a meaningful democratic process.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we'll move to Cardinal Collins and Mr. Worthen.

[Cardinal Thomas Collins, Archbishop, Archdiocese of Toronto, Coalition for HealthCARE and Conscience]

Good afternoon, and thank you for providing the opportunity to speak with you about Bill C-14, legislation that will have a profound impact on Canadian society for years to come.

I appear today on behalf of the Coalition for HealthCARE and Conscience. Joining me is my colleague Larry Worthen, the executive director of the Christian Medical and Dental Society of Canada, which is a member of our coalition. We represent more than 5,000 physicians across Canada and more than 110 health care facilities and almost 18,000 care beds and 60,000 staff.

As we have previously stated, because of our mission and our moral convictions, we cannot support or condone assisted suicide or euthanasia. We understand, however, that the Supreme Court of Canada has directed the federal government to pass legislation on euthanasia/assisted suicide by June 6 and that Bill C-14 comes as a result of that decision.

Today we will address the need for amendments to Bill C-14 to protect conscience rights for physicians and health care facilities. Our members are committed to caring for their patients at every stage of life. We know what it is to journey with those who are facing great suffering in mind and body. We are committed to serving those who suffer with a compassionate love that is rooted in faith and expressed through the best medical care available.

What our members cannot do is perform or participate in what is being referred to as medically assisted death. To be clear, by participation I also mean playing a role in causing death by arranging for the procedure to be carried out by someone else through a referral.

We acknowledge that the draft legislation tabled on April 14 set aside, at least for the moment, some of the most disturbing recommendations from the parliamentary joint committee. We remain concerned, however, that the bill does not protect the conscience rights of health care workers and facilities with moral objections to euthanasia and assisted suicide.

We see no reference to conscience rights in Bill C-14. The preamble to the legislation notes that the government respects “the personal convictions of health care providers.” While that respect is appreciated, it does not carry the same legal weight as legislative protection. No foreign jurisdiction in the world that has legalized euthanasia/assisted suicide forces health care workers, hospitals, nursing homes, or hospices to act against their conscience or mission and values.

It appears that the federal government is leaving this issue to the provinces and territories for consideration, but if the federal government enacts a law that establishes euthanasia/assisted suicide across Canada, it needs to provide robust protection of conscience rights across Canada.

It is essential that the government ensure that effective conscience protection is given to health care providers, both institutions and individuals. It is simply not right or just to say to an individual, “You do not have to do what is against your conscience, but you must make sure it happens.” It is equally unjust to require a health care facility to repudiate its institutional conscience or mission. We would note that no health care facility in Canada makes every procedure available to its patients.

We will continue to journey lovingly with our patients every day. We ask that you protect all health care workers and the institutions that are successors to the pioneers of health care in our country to ensure that they may continue their mission of care and healing.

Larry.

[Laurence Worthen, Executive Director, Christian Medical and Dental Society of Canada, Coalition for HealthCARE and Conscience]

Thank you, Cardinal Collins.

Members of our coalition support the right of patients to refuse or discontinue treatment at end of life, allowing the underlying illness to take its course.

We wish to make it clear that should Parliament legalize medical aid in dying, we will not in any way obstruct patients who decide to seek that procedure, and we will never abandon our patients.

We know there are many ways to respect patient decisions that do not violate the conscience of health care workers or institutions. The Canadian Medical Association and other experts have said there is no necessity for there to be a conflict between these two values.

Our own proposal recommends the use of transfer of care and direct patient access, so patients have the choice of staying with their physician for care or transferring care to another physician.

Facilities that cannot provide the procedure on their premises are prepared to help transfer patients to the facility of their choice if the patient so desires.

To force providers to act against their moral convictions is to breach section 2 of the Charter of Rights and Freedoms. We know hospitals and regulators all across the country are right now developing policies on this subject. For example, the College of Physicians and Surgeons of Ontario has already provided a provisional policy that will force doctors to provide a referral for euthanasia and assisted suicide. At the same time at least seven other provincial colleges have not taken that approach.

Legislation from Parliament would send a clear signal that the charter rights of caregivers all across Canada can be protected. Canadians should not have to deal with a patchwork approach.

Parliament has legislated matters that overlap into provincial or territorial jurisdiction in the past. Consider, for example, the Civil Marriage Act passed by Parliament in 2005 to legalize and regulate same-sex marriage. While marriage falls under provincial jurisdiction, this is federal legislation that governs marriage. The act contains language in its preamble and a specific clause recognizing that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.

Our coalition recommends Parliament use the same legislative approach in Bill C-14, including language both in the preamble to the bill and in a specific clause that confirms that individuals or faith-based health care institutions that oppose euthanasia or assisted suicide are not to be compelled to engage in it and are not to be discriminated against as a result of their opposition.

Our proposed amendments to the preamble of Bill C-14 read as follows, and in the interests of time I will read two of those that we submitted in our brief.

Whereas Parliament respects and affirms freedom of conscience and religion for health care practitioners and faith based institutions, and whereas nothing in this act affects the guarantee of freedom of conscience or religion, and in particular the freedom of health care practitioners and faith based institutions to refuse to provide or participate in the provision of medical assistance in dying.

Our proposed amendments to the body of the act would read as follows:

It is recognized that health care practitioners are free to refuse to participate in medical aid in dying, either directly or indirectly, if doing so is not in accordance with their conscience or religious beliefs. For greater certainty, no person or organization shall be deprived of any benefit or be subject to any obligation or sanction under any law of the Parliament of Canada solely by reason of their exercise or refusal to exercise in respect of medical aid in dying of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.

In closing, we would like to mention that the Carter case clearly stated that no physician could be forced to participate in assisted death. The court also said this was a matter that engaged the charter freedoms of conscience and religion.

It is not in the public interest to discriminate against the category of people based solely on their moral convictions and religious beliefs. This does not create the kind of tolerant, inclusive, or pluralistic society that Canadians deserve.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we will move to Ms. Gokool.

[Shanaaz Gokool, Chief Executive Officer, Dying With Dignity Canada]

Good afternoon.

Thank you to the justice and human rights committee for inviting Dying With Dignity Canada to this hearing today.

We have been on the assisted dying file for well over 30 years. If anyone recognizes the historic moment that our country is now in, we certainly do. However, we are very concerned about Bill C-14 and its unjustified deviation from many of the core recommendations of the special joint parliamentary committee.

We are concerned that the government's definition of “grievous and irremediable” does not meet the minimum standards of Carter. If Carter is the floor for assisted dying, we're now in the basement. We are also particularly concerned that there is not a provision for advanced consent for people who have a diagnosis of a “grievous and irremediable” condition such as dementia or Huntington's.

While Dying With Dignity Canada's policies are informed by our physicians' advisory council, we're not doctors and we're not lawyers. We represent the 85% of Canadians who support the Carter decision and the 80% of Canadians who support advanced consent with a diagnosis. As such, our organization has a responsibility to discuss the vulnerable groups of people who will be left behind if Bill C-14 is not substantively amended. The people I will mention today are but a snapshot representation of the thousands of Canadians who will not be able to find comfort in Bill C-14 and who may have to go to court to establish their charter right to die.

The following is not an exhaustive list of concerns, but it does highlight some key exclusions.

The government's legislation redefines “grievous and irremediable” and introduces new terms, such as “incurable”, “advanced state of irreversible decline”, and “reasonably foreseeable”. These new terms will exclude people who have serious chronic medical conditions and will exclude people who are not imminently dying.

So who are we talking about? Who's going to be excluded?

This is Linda Jarrett. Linda was diagnosed at the age of 50 with secondary progressive multiple sclerosis. At 68, she can no longer walk, and the years ahead are deeply troubling for her. She does not want to stay in a 24/7 long-term care facility for what could be years on end. She wants choice and the comfort of knowing that she will be able to make a choice, if her condition and her suffering becomes too much to bear.

This is Ronald Phelps with his daughter Laura. He had a debilitating stroke that left him bedridden and losing his ability to speak. Further complications meant doctors were going to have to amputate both of his arms and both of his legs. Instead, he chose to starve and dehydrate himself to death, which, as his daughter Laura said seemed really to be piling torture onto torture. Others like Ronald Phelps deserve compassion and choice, not more suffering to find peace.

Here is Drew Sperry, who died painfully from ALS and whose greatest fear was not dying, but living, in his own words, “trapped inside my body gasping like a fish on the wharf”.

Let's not forget about Jean Brault, a Quebec man who had a blood clot in his brain and over a period of years suffered from a series of debilitating strokes. Mr. Brault thought, when the legislation came into effect in Quebec, that it meant release from his torment. He was told by his doctors that he met the criteria: he couldn't walk, he was losing his ability to speak, and he was in an incredible amount of pain. But he was also told he wasn't dying fast enough, so he starved himself for 53 days and dehydrated himself for eight days before he was able to qualify for an assisted death. He told the media that he had to self-mutilate to be liberated from suffering.

The government needs to ask whether these are the only choices available to people like Linda, Ronald, Drew, and Jean: to suffer horribly for years or even decades before dying a protracted, painful death or to starve and dehydrate themselves to death, and now, with this narrow and restrictive legislation, to show courage in the face of their suffering and to go to court to fight for their right to die.

We ask that proposed section 241.2 be amended to use the court's language in Carter and to strike “incurable”, “advanced state of irreversible decline”, and “natural death has become reasonably foreseeable”.

Now I will turn to the issue of advance consent. Without advance consent people with a diagnosis for a “grievous and irremediable medical condition” such as dementia, Huntington's, or Parkinson's will face a cruel choice.

This is the one the courts sought to avoid in Carter, to try and take their own lives far too early while they may still have months, or even years left ahead, but while they are still physically and mentally able to do so, or to die in a manner they would describe as horrific.

This is Gillian Bennett, a B.C. woman who was diagnosed with dementia. In the summer of 2014 she took her own life while she was able to, and in her words “I, Gillian, will no longer be here. What is to be done with my carcass? It will be physically alive, but there will be no one inside”.

Here's Margot Bentley, a former dementia nurse who in a cruel twist of fate said she wanted to be allowed to die if she ever developed dementia. She has now been living and dying with dementia for 17 years. As her daughter Katherine says, she is indeed terminally ill, she and people like her. In 2011, in Canada, over 740,000 Canadians are living with dementia. That's 15% of the population over the age of 65. They are completely excluded from this legislation. They cannot ask for an assisted death in advance under this legislation, and they can't ask for it while they are still competent. They will not qualify.

In the summer of 2015 Lee-Anne Peters, who was 30 years old, took her own life after a number of attempts. She was in the mid stages of Huntington's disease, and she knew what was coming for her. Her mother Lisa said Lee-Anne prayed every day to be allowed to choose her own time where she could no longer enjoy life, but because there was no legislation, she was forced to end her life early, alone, and without friends or family, while she was still able to.

Gillian, Margot, and Lee-Anne represent hundreds of thousands of Canadians who have already been given a life sentence. By excluding advance consent, the federal government has acknowledged their Charter of Rights will be violated. The legislation must be amended immediately to include advance consent, or the federal government must provide a sincere commitment to ensure whole groups of people based solely on their medical condition are not discriminated against, and add a statutory mandatory mandate requiring an independent expert study of the issues with a prescribed deadline of 18 months to report back to Parliament with possible amendments to the Criminal Code. This remedy may also be applied for the inclusion of mental illness and competent minors.

In conclusion, if this legislation is not significantly amended then we can expect to see more seriously ill, chronically ill, sick, and dying Canadians who will have to go back to court to access what we believe will be their charter rights. Haven't enough sick and dying people already sacrificed so much for us, and haven't they already gone to court to establish the Charter of Rights for people who are grievous and irremediable ill?

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd like to thank all four of the different groups who testified before us today for their compelling presentations. We're going to start with questions from the members. We'll start with the Conservatives. Mr. Cooper, you will go first.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I want to thank all of the witnesses for their testimony.

My first question is to Ms. Gokool. You made reference to advance consent, and you conflated that with the Carter decision. You went on to suggest that it was charter right, and I was wondering if you could point to the paragraph in the Carter decision that says advance consent is a right under section 7 of the charter.

[Shanaaz Gokool]

For the concept of consent in the Carter decision, the court didn't define when consent had to be established in order for a request to be considered valid. We would say the Carter decision was neutral on advance consent. We would say that discriminating against whole groups of people based solely on their medical condition may very well be a charter discrimination, and a violation of their charter of rights.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In other words, the court never did say it was a charter right. My next question is to Cardinal Collins. Cardinal, you spoke about the need for conscience protections. I'd like to ask you about conscience protections for faith-based health care institutions. There are some who are not supportive of conscience protections for faith-based institutions. They seem to distinguish between health care providers as individuals on one hand and institutions on the other. In so doing they characterize institutions as bricks and mortar. This view seems to be inconsistent for example with the pronouncement of the Supreme Court in the Loyola decision wherein Justice McLachlin recognized that under section 2 health practitioners and institutions are intertwined when it comes to freedom of religion and freedom of conscience. I was wondering what your comments might be on those who would say health care institutions are merely bricks and mortar, and therefore are not worthy of conscience protections.

[Cardinal Thomas Collins]

I think that with health care institutions, what we call their conscience we called “mission”. From the earliest days of our country, the religious sisters who founded health care in our country were driven by their mission of serving other people. That is the heart of who they were, and it is to this very day.

I live right next to a Catholic hospital that presents itself as the Urban Angel protecting the people, and it does that. That spirit, that mission at that hospital, is something profound. It is what I would call an institutional conscience. It is something very precious.

Institutions such as Catholic hospitals and others of other faiths are not bricks and mortar; they are the spirit of the people there who are helping. I think that's a very narrow and misguided view of groups of people who give their life to help others and without whom this country would be a colder, harsher, rougher place, without the love and care of people serving a mission, as in a hospital. It's not just bricks and mortar at all.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

In the absence of conscience protections, could you comment on what you're hearing in terms of the impact that may have on health institutions, many of which have been providing quality health services for decades? I know that in the province of Alberta, Covenant Health is one such example, wherein the absence of conscience protections becomes a major problem.

Would you be able to comment on the impact, if Parliament doesn't act with conscience protection legislation?

[Cardinal Thomas Collins]

I think it would be a very serious impact. I noticed when we got together to make a statement in the parliamentary press room a while ago that the Salvation Army also was standing...we were side by side, because they also have hospitals that are very concerned about this.

I think it's the institutions, these health care facilities that are there to serve.... If they are not allowed to do so, it would be a very serious problem. Of course, there are the individuals as well. Individual health care providers are the doctors, nurses, pharmacists. These are people who also need to be protected, and it's not just about their conscience rights not to perform these procedures but also not to effect a referral to make them happen.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

My last question is directed to Mr. Worthen. You read a proposed conscience protection clause. I haven't seen the text of it. You may have submitted a brief, but I haven't had an opportunity to review it. Based on what I heard, is it modelled after section 3.1 of the Civil Marriage Act? Is that effectively the structure of this specific proposed amendment? It sounds awfully similar.

[Laurence Worthen]

It is very similar. It was based upon that legislation.

[The Chair, Liberal, Anthony Housefather]

Now we will go to Ms. Khalid.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Thank you, Chair.

I'd like to thank everybody for making your presentations. Your viewpoints are very much appreciated, I think, in guiding the government on how to take a balanced approach to addressing this complex and very sensitive legislation.

I want to talk about balance and really about balancing a person's civil rights, and then about the rights and protections that vulnerable persons must be assured of.

My question is to the Civil Liberties Association. In your brief you have mentioned that there is no reason to distinguish between mature minors and incompetent adults and that the age requirement set out in the bill should be eliminated.

My question to you, then, would be: how do you propose that we protect vulnerable groups such as minors when it comes to physician-assisted dying?

[Cara Zwibel]

Our view is that the issue of minors is something that's addressed regularly by people who are practising in the health care field. These decisions about who is a mature minor, and who can make treatment decisions, are decisions that health care providers make on a regular basis.

I think it's reasonable to assume, and it's important to understand, the mature minor decision is not a stamp you get at a certain age or at a certain point in time. The mature minor assessment is generally made in relation to a particular treatment decision. Someone would be assessed in relation to this particular treatment decision. Are they capable of making a decision to request assistance in dying?

I think it's reasonable to assume that physicians who are charged with making those decisions are likely going to have a higher bar than they would for other types of treatment decisions, such as can you consent to a blood transfusion, or can you consent to surgery or to emergency treatment.

The idea behind a mature minor assessment is you're someone who can make a decision with the same capacity as an adult, and there isn't, in our view, a principle basis for distinguishing.

I appreciate there are concerns. I guess I have confidence our medical professionals are not going to view this decision lightly. They are going to take this responsibility very seriously. I think that's implicit in the fact the legislation does vest so much power and influence in the assessments of medical professionals. We think that's how you would address it.

I appreciate it's a complicated issue, people are concerned about it, and it certainly makes people uncomfortable to think about young people choosing to end their lives. To the extent the committee does decide this is something that requires further study, then I certainly agree with Ms. Gokool from Dying with Dignity that there should be a timeline put on this consideration, so we don't wait and have people suffering because Parliament is unable to act.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Ms. Gokool, as you had also mentioned this is something that should be removed from the bill, can I please have your opinion as to how we should go ahead with the protection of vulnerable persons?

[Shanaaz Gokool]

I think the first thing I would say is when we talk about vulnerable people, there seems to be this dialogue that there are vulnerable people, and then there are people who are suffering and need help to die. They are the same group of people. People who are suffering intolerably and have enduring suffering are also very vulnerable.

If there's some question as to the policies and protocols that need to be developed within medical practice to deal with advanced consent of mature, competent minors, I would say for our organization—and we have worked on this issue for decades—the issue of mental illness as a sole criteria and competent minors is a fairly new component to the discussion. Even for us, it's fairly new.

I think it's not unreasonable for the government to need more time to understand, through more consultation with people who are going to be social workers and medical health care providers, how parameters can be developed to ensure we're not discriminating against people arbitrarily based on age, or arbitrarily based on their medical condition.

In the legislation, in the preamble and the non-legislative component, the government has indicated they would study this within five years. That feels for a lot of us that's just kicking the can down a dead-end road. There was a sincere commitment and understanding that there may be a need to have some thorough discussion to understand what those policies and protocols might be, and that there be a timeline of 18 months to strike a committee, and I would say in the next three months to study and report back with legislative guidelines. We don't have all those answers, but at the same time, we don't want to arbitrarily exclude people and not find ways to ensure their Charter of Rights will not be violated.

[The Chair, Liberal, Anthony Housefather]

A very short question.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

Again, to the Civil Liberties Association, a very short answer, please.

In your brief you had mentioned that the reasonably foreseeable death is vague. Would adding a specific timeline of perhaps six months, eight months, or a year make it more clear in your opinion?