Justice Committee on May 3rd, 2016

[Cara Zwibel]

I think it would make it clearer and would arguably also make it unconstitutional. I think the clear direction from the court in Carter was that this was not about proximity to death; it was about quality of life. To impose that kind of requirement, first of all, is asking physicians and health care providers to do a very difficult task. I think most physicians find forecasting with that level of specificity difficult. I would argue that while it makes it clearer, it undermines the animating purpose for this legislation.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you to all the witnesses.

I noticed, just to build on what my colleague just asked, Ms. Zwibel, that you recommended that proposed paragraph 241.1(2)(d), which contains the “reasonably foreseeable” natural death, be removed. It's the same recommendation Ms. Gokool made, and many others as well.

You said you were an intervenor in the decision, so you were present, and you conclude that this is contrary to the letter and spirit of Carter. I would like you to elaborate on why you think that's true.

[Cara Zwibel]

The focus in Carter was on suffering; it wasn't on a timeline. The organization was an intervenor before the court in Carter. We were not involved in compiling the record of evidence, so it's been a while since I've examined it closely. But my understanding is that Ms. Carter, for example, whose daughter and son-in-law were applicants, was suffering from a disease that would not have lent itself to that kind of characterization: that death was reasonably foreseeable in any sort of proximate way.

The fact that the court was examining that among other specific cases and found a right under section 7 of the charter to medical assistance in dying for those suffering from a grievous and irremediable condition says to me that proximity to death is not a component of that decision.

[Murray Rankin, NDP, Victoria, BC]

Ms. Gokool, you had a very provocative introduction in which you said that if Carter is the floor for physician-assisted dying, we're now in the basement. Then you named Linda, Ronald, Drew, and Jean Brault, who, you said, were excluded under Bill C-14.

Is it your evidence that they would be allowed to use medical assistance in dying, under your interpretation of the Carter case itself?

[Shanaaz Gokool]

I'm going to pick up where my colleague from the Canadian Civil Liberties Association left off.

We think that we are in the basement, because it's either not clear or the government isn't saying what they really mean when they use terms such as “incurable”. In the Carter decision, the court made it quite clear that “irremediable” had to be qualified by “for which there was no treatment acceptable to the person”.

When the government uses the language that a natural death has to be “reasonably foreseeable”, it's either nonsensical, because everyone's death is reasonably foreseeable, or it's unacceptably vague. Doctors who are going to be examining people are going to be asking the same question all of us are, “Why don't they just say 'terminal', because I think that's what they really mean?” If that's the case, then all the people I've listed would not meet the definition in the government's legislation, but would meet that in the Carter decision, because the Carter decision wasn't just about dying; it was about people who were suffering intolerably. I think that's something we have to make clear here: this bill is for people who are imminently dying.

[Murray Rankin, NDP, Victoria, BC]

Thank you; that's fine.

I'd like to ask the Christian Legal Fellowship a question about their request that the preamble of the bill talk about suicide prevention and inherent rights. I ask the question because we already have in the preamble an affirmation of the inherent and equal value of everyone's life, and we already have in the preamble a reference to suicide as a significant public health issue, so I'm really unclear what you think your suggested language would add.

[Derek Ross]

Yes, we do think that these additional wordings are necessary. We recognize that the preamble is a good start and that it addresses suicide as a public health issue. It does not, though, specifically affirm that suicide prevention remains a public policy goal. It simply states that it's a public issue and can have negative effects.

We want it to be abundantly clear, in part because this issue—suicide prevention as a legislative objective—was not really considered in Carter. Carter, in determining whether the law was overly broad and vague, looked at the law solely through the lens of whether it achieved the objective of protecting vulnerable persons. It didn't address these bigger societal issues that we think need to be clearly and specifically affirmed.

It's the same thing the inherent—

[Murray Rankin, NDP, Victoria, BC]

Thank you. I'm only concerned about time. I think I understand what you're saying on that point.

If I had the opportunity, I'd like to ask one final question to the Coalition for HealthCARE and Conscience, for either Cardinal Collins, or Mr. Worthen.

[The Chair, Liberal, Anthony Housefather]

Yes.

[Murray Rankin, NDP, Victoria, BC]

There was talk about institutional conscience. There was talk of mission and that institutions ought to be provided conscience protection in the bill. I wasn't sure if you could speak to the requirement, if any, of a transfer to another facility if a particular institution is not willing to provide this constitutionally guaranteed service.

I'd like your position on whether that institution or that practitioner with conscience objections should be required to make a transfer or referral of a patient.

[Laurence Worthen]

If I could just respond to that.

Part of the problem in this debate is the definition of referral. When we talk about referral, we're talking about a formal referral, which is essentially a recommendation.

If patients are in a facility that is not able to provide assisted death on the premises, then our moral beliefs allow us and physicians within that facility to facilitate a transfer of the patient to the facility of their choice where they can get access to that procedure.

Similarly if a patient comes into a doctor's office and wants assisted death, and the doctor is a conscientious objector, there are number of ways to deal with that. One of them is to transfer to another physician. Another is if the provincial government were to develop a process of direct access for this, the patient could keep their physician.

There are many ways we can ensure patient requests are respected, while at the same time protecting conscience.

[The Chair, Liberal, Anthony Housefather]

Thank you Mr. Rankin.

Next we're going to Mr. McKinnon.

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

Thank you to all the witnesses.

My question is again for the Canadian Civil Liberties Association, Ms. Zwibel.

I understand you consider that section (d), we're taking about foreseeable death, should be dropped and cannot be repaired by adding a specific time element to it. Is there any other way you can imagine it could be corrected without dropping it entirely?

[Cara Zwibel]

The suggestion in our written brief was an addition for a greater certainty clause. I suppose the answer to your question depends what that reasonable foreseeability requirement is trying to accomplish.

I have to agree with Ms. Gokool, that if the goal is to make a terminal illness a requirement, that's not something we would support and not something we have suggestions of how to achieve.

If—as it seems from the background documents that I've read, and from the minister's statements, and the statements in the House that I've seen—this is intended to apply to people like Ms. Carter, whose death was not necessarily reasonably foreseeable or proximate, then in our view it's appropriate to drop it and to add in a greater certainty clause that makes it explicit that a terminal illness or proximity to a natural death is not a requirement.

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

Thank you.

In your view, with another paragraph of that part, regarding an “advance state of irreversible decline”, do you think that is an appropriate constraint?

[Cara Zwibel]

That's one I have to acknowledge I haven't looked at as closely. That one seems less vague to me. It seems like a physician would likely be able to appreciate what that requirement means.

Whether it's in line with what Carter requires, I'm not convinced that it is. In our view, the biggest problem is this reasonably foreseeability requirement.

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

I believe this section is about trying to put some clear definition around the concept of “grievous” and “irremediable”. It does introduce new terminology, such as “incurable in illness”, and “advance stage of irreversible decline”, and things like “reasonable foreseeable death”.

I'm wondering if you feel that it does successfully narrowly enough define the concept of “grievous” and “irremediable“, or do you think this section is useful at all?

[Cara Zwibel]

I am a bit torn about whether “grievous and irremediable”, that language on its own, is sufficient. I don't fault the drafters of the legislation for trying to put some more meat on the bones, so to speak, and be more specific about what that means and provide some guidance. I would say that to the extent it requires an incurable illness or condition, I would interpret that in line with the Supreme Court's decision in Carter in terms of incurable to the extent that any treatment is not tolerable or acceptable to the individual in the particular circumstances.

I think the effort of trying to define grievous and irremediable is probably a valuable one, but as I said, the biggest problem I see is with the reasonable foreseeability requirement.

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

Thank you.

Another question that has come up a number of times is the idea of a 15-day waiting period, a clear 15 days, which could mean more than 15 days. This could force individuals to undergo an extra number of weeks of suffering. Some have suggested this might be unconstitutional.

Would you like to give us an opinion on that?

[Cara Zwibel]

Our submission on this point was that we weren't opposed in principle to a brief period of reflection, what some people call a cooling-off period, as long as there were opportunities for exceptions. I think the legislation does make an exception. It does allow for that 15 days to be abridged in circumstances where...I'd have to look back at the legislation, I'm not sure if it's where the suffering would be intolerable or where the view is the individual doesn't even have that much time, but allowing for a period of reflection and allowing also for exemptions from it is not inappropriate.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Given the short time we have, and the number of panellists today, we can only do one round of questions. I want to thank all of you profusely for your contributions to our deliberations. Rest assured we'll carefully read each of your briefs and take what you've said under advisement.

Thank you all so much for joining us. We appreciate it.

We're going to take a brief break to get our next panel set up.

[The Chair, Liberal, Anthony Housefather]

We're going to reconvene. I would like to thank our next witnesses, who are all by video conference, for having joined us. I hope you can all hear me.

My name is Anthony Housefather, and I'm the Chair of the committee.

As we go, I will introduce you to the people who are going to be asking you questions. We're going to start with each of you, or each organization, having an eight-minute presentation: there are three. That will be followed by a round of questions where we will have the Conservatives asking six minutes of questions, the Liberals asking six, the NDP asking six, and the Liberals six. We'll then see if we have any time for a speed round.

I would ask all of you to keep your remarks to eight minutes. That would be much appreciated. If you would stick to proposed changes to the legislation, as opposed to general overviews that might have been heard by the special committee, that would also be appreciated. We're not here to reinvent what the special committee heard. We're here to talk about the proposed law.

I would like to introduce, as an individual, Ms. Carrie Bourassa, who is a professor of Indigenous Health Studies at First Nations University of Canada. Welcome.

From the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society, we have Margaret Birrell, who is a board member, and Angus M. Gunn, who is a counsel.

From Communication Disabilities Access Canada, we have Hazel Self, who is the chair of the board of directors.

Welcome all of you.

We will start with Ms. Bourassa. The floor is yours.

[Professor Carrie Bourassa, Professor, Indigenous Health Studies, First Nations University of Canada, As an Individual]

Thank you. I hope I've prepared this properly. I apologize if I haven't. At the last parliamentary committee where I was asked to present, I read something in a similar format, but not the same content. Forgive me if I haven't done it correctly.

I want to start by saying that in terms of the bill that's being proposed, many first nations communities are not fully prepared for the implementation of Bill C-14. For that matter, in my opinion, neither is the Canadian health care system, due to the interconnectedness of the ongoing oppression, especially the intergenerational effects of the residential school system and the lack of general awareness of this ongoing oppression, as well as the need for further development of cultural safety models in health care systems.

The First Nations Health Authority states that today first nations are still affected by colonization and assimilation, systemic discrimination and racism; child apprehension; land dispossession; loss of tradition, language, and culture; the legacy of residential schools; and intergenerational trauma and its effects. The residential school system and intergenerational trauma often overshadows the other forms of ongoing oppression, and rightly so, due to the recent conclusion of the Truth and Reconciliation Commission.

As a result of the residential school system and its intergenerational effects, first nations are likely to suffer from mental health issues, including depression and suicidal ideation. This would include the older aboriginal population. While attention has been most recently focused on the epidemic of youth suicides in first nations communities, globally, suicide in many countries is as high or higher than suicide rates for young people. Due to the current research gaps in the area of aging for the older aboriginal population, this is an area clearly in need of further research in order to understand how the elderly are being affected by suicide.

The older aboriginal population could be more at risk for suicidal ideation due to the cultural genocide of the residential school system, whereby the loss of parenting skills that allowed for a child to grow in a traditional home environment and learn cultural norms; the loss of traditional healing methodologies; and the loss of traditional knowledge and history, including gender roles and the role of the elderly in society, were significant impacts.

Included in the loss of traditional knowledge and history would be whether assisted dying was practised, and if so, under what circumstances. The high suicide rates in the aboriginal community, combined with the loss of the aforementioned, create a situation where the introduction of assisted-dying legislated practices could create significant problems. How will high rates of suicide among the elderly affect their ability to neutrally determine the right to die? How will a lack of knowledge of traditional customs affect the ability of the elderly to determine the right to die?

The intergenerational impacts of the residential school system discussed for the elderly are just as applicable for the ill and the disabled. How does a significant loss, the cultural genocide of the residential school system, impact first nations today in the valuation of their lives?

When first nations communities can positively state they are in a period of stabilization in terms of community wellness, maybe that would be a time to consider introducing such legislation, but not now when too many communities are just beginning to recover from ongoing oppression, and particularly that of the residential school system.

The Health Council of Canada calls for awareness and understanding of the history of colonization, institutional discrimination, and power imbalances when cultural safety models are developed and implemented. The ongoing oppression of first nations is not well known to the general Canadian public or to health care practitioners, despite some efforts, including an understanding of this, such as mandatory introductory courses on indigenous health for nursing students offered here at First Nations University of Canada.

Regardless of these initial efforts, cultural humility, a key component of cultural safety, reminds us that a four-month class or a 12-hour course is not the equivalent of a lifetime of enduring the impact of ongoing oppression. Ongoing relationships between patient and health care practitioner need to be developed and nurtured in order to create trust for the patient.

Relationships such as these take time.

Evidence of the general lack of cultural awareness and sensitivity can easily be found in the media when familiar former political figures offer relocation strategies for youth suicide epidemics in northern remote first nations communities. The lack of mass Canadian public outcry at this strategy is indicative of the systemic problems that need to be overcome.

Without relevant cultural safety models being implemented for health care practitioners to offset the historically compounded views of first nations in society and academia, what kinds of relationships will health care practitioners have with first nations patients who are elderly, ill, or disabled? Will it be a long-term relationship, or two strangers meeting to decide life or death?

Will it be remembered that first nations have a wealth of knowledge and history that at times needs to be nurtured back from the effects of ongoing oppression, especially the residential school system? Will the resiliency of first nations, a clear reminder of how first nations have endured and overcome adversity, be remembered?

Without an understanding of this, would it not be too easy for a client to accept assisted dying without truly giving informed consent, or a health care professional to accept such flawed consent?

Meegwetch, and thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Professor Bourassa.

Next we will move to the Alliance of People with Disabilities. Ms. Birrell and Mr. Gunn, the floor is yours.