Justice Committee on May 3rd, 2016

[Michael Bach]

Yes, I agree, but my point was the court saw fit to establish that judicial oversight, and not to simply say that if you have two or three physicians who can attest to someone meeting the eligibility criteria, you can proceed.

All I'm saying is the court must have seen judicial oversight as to be consistent with its parameters in its decision and with the charter.

[Colin Fraser, Liberal, West Nova, NS]

It did so in also mentioning it's up to Parliament now to put together a legislative framework and put it in place.

[Michael Bach]

Absolutely, yes.

[Colin Fraser, Liberal, West Nova, NS]

In regard to some of the safeguards you mention in your brief—I appreciate you sharing that with us—you mention the term “qualified clinician”. What do you mean by that?

[Michael Bach]

A clinician who is qualified to do palliative consultation.

[Colin Fraser, Liberal, West Nova, NS]

Okay. With the written palliative consultation report you talk about, wouldn't that go to the whole issue of informed consent itself?

Do you not see that's going too far in an amendment to the Criminal Code to start talking about what kind of informed consent there should be? Don't you believe that should be up to the provinces or the medical profession to decide?

[Michael Bach]

The Criminal Code has established a standard of external pressure. That's the one criterion it stated for informed consent, and given that we're talking about an exemption to a Criminal Code prohibition on assisted suicide, I think we absolutely need to have a uniform standard of informed consent for this exemption to the Criminal Code.

Absolutely I think it needs to be in the Criminal Code. Our concern—others are proposing this as well, to have a palliative consultation—is that physicians are not generally trained in the range of psychosocial causes of suffering that may be at work for someone who's at the end of life, and that a palliative consultation can identify that full range of options for people.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Marceau, thank you for your presentation.

Is “reasonably foreseeable” death, as stated in the bill, beyond the scope of Carter?

[Richard Marceau]

We don't think so.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Ms. Sansoucy, it is a great pleasure to have you with us, and we welcome Mr. Thériault as well.

Ms. Sansoucy will share her time with Mr. Thériault.

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Thank you, Mr. Chair. I will make a brief comment and then give Mr. Thériault the floor.

I would like to thank the witnesses for their presentations.

Mr. Fletcher, than you for sharing your personal experience with us, but especially your legislative experience. You have given me a lot of information about the amendments that should be made to the bill to bring it into line with the decision in Carter.

Mr. Thériault, you have the floor.

[Luc Thériault, Bloc, Montcalm, QC]

I like having time.

Mr. Fletcher, with all due respect to the other witnesses and meaning them no offence, I came here this evening, after a very busy day, to be sure to hear you because, for one thing, you are inspiring. Some people claim to be well-wishers and do-gooders when it comes to vulnerable individuals. By interfering with their self-determination and their autonomy, they imagine themselves, in all their paternalism, to be doing good, when we know very well that this is not the case.

Yesterday, the Barreau du Québec said exactly what you have said this evening. I don't know whether you find it reassuring, but there are others who share your opinion of Bill C-14. That is simply a comment, an expression of appreciation. I also share your reading, because we are talking at all times about vulnerable individuals. However, the Supreme Court has specifically taken a position under section 7 of the Canadian Charter of Rights and Freedoms to protect vulnerable individuals, in particular when it says that a total ban, as is the case at present, infringes not only a person's security and freedom but also their right to life, in that it could lead to the person taking their life prematurely, when, in fact, individuals with a degenerative disease, for example, are not suicidal. They want to live as long as possible, until the time comes, at the point where their condition appears to be completely unbearable, when they are no longer able to end their own life. Those people are the sole judges of their condition. On that point, your testimony seems very eloquent.

Mr. Marceau, you are familiar with the law in Quebec. I think there is some confusion in Bill C-14. What do you think about the Quebec law, on which there was consensus after six years of discussion, and that the National Assembly passed by a vote of 94 to 22? What do you think about Quebec's act respecting end-of-life care?

[Richard Marceau]

In terms of the process itself, everyone agrees that it was remarkable. The people in civil society were listened to and heard. I would particularly note the remarkable work done by Véronique Hivon, whom you met with yesterday, I think. I also know her personally.

Quebec has been exemplary in its consideration of this issue. It also had the time to come to a position that was quite broadly shared. You said that 94 out of 125 members of the National Assembly were in favour of that position, as compared to only 22 who opposed it.

I know that you are very familiar with politics in the National Assembly. It is very difficult to manage to achieve that level of consensus on an issue like this. It is quite remarkable.

The work in front of you as federal parliamentarians is very difficult, because you have very limited time. You are still here and it is nearly 8:30 p.m. You have spent the day working on this issue. I am familiar with the work done by the justice committee, and Bill C-14 is quite complex. It takes a lot of concentration, and that is a demanding task.

Personally, I am an admirer of the Quebec law on this subject. Knowing the institution where you sit, and a number of you around this table, I am sure that the work you will do will also be serious, limited though the time is. I am sure you would have liked to have more time, but that is unfortunately not the case. I am sure that the work you are doing and will be doing will result in a position that will both comply with the decision of the Supreme Court of Canada—we have the rule of law in Canada and we must respect that Court's decision—and, I hope, meet the aspirations of the largest possible number of people.

[The Chair, Liberal, Anthony Housefather]

Do you have another question to ask, Mr. Thériault?

[Luc Thériault, Bloc, Montcalm, QC]

The reason I asked you that question is that the Quebec law deals with a situation that is completely different from the one addressed by Bill C-14.

The Quebec law, rather than positing two opposing situations—palliative care and a request to die—treated it as being a continuum of end of life care. Euthanasia itself, or medical assistance in dying, is possible only in the terminal phase of life, where the process of dying has been irreversibly set in motion.

[Richard Marceau]

When it has begun, that is.

[Luc Thériault, Bloc, Montcalm, QC]

Here, we are facing a different challenge: how to legislate in respect of assisted suicide. Bill C-14 uses the same terminology as the Quebec law. However, there is confusion about what the Quebec law covers, and so this bill still does not completely govern assisted suicide, in the belief that it answers the question of what medical assistance in dying should be.

You told us that medical assistance in dying should be limited to "adult patients on the brink of natural death." In fact, the words "natural death" are problematic for me. That seems to be based more on the Quebec law. However, a person suffering from a degenerative disease—for example, ALS—is not entitled to make an advance request and is ultimately condemned to become a prisoner in their own body and to die choking on their own mucus because the law does not give them the right to assisted suicide. When that happens, the person is very far along in the process. A person can be in the terminal stage of a disease without being in the terminal phase of life.

What do you mean by natural death? In palliative care, death is induced by the sedation you are given to control pain.

[Richard Marceau]

We could debate this at length. Mr. Thériault, allow me to go back to your comment about what you call "the continuum". Is medical assistance in dying part of the same continuum as palliative care or are we talking about two things that are completely separate? I will not be telling you anything you don't know when I say there is quite a fierce difference of opinion on that subject.

A lot of people who testified before the special joint committee, on which a number of you sat, are of the opinion that we are talking about two separate things. Apart from that philosophical distinction, there are very significant practical aspects.

I am sure we will have an opportunity to continue this discussion, perhaps in another forum. No matter what direction the committee on which you sit takes, it is very important not to make medical assistance in dying the default option because the supply of palliative care does not meet the demand, particularly in an aging society.

That is why I said earlier, in my conclusion, that we cannot exclude discussion about improving the supply of palliative care in the society we live in today.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Marceau.

We'll go now to Ms. Khalid.

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

Thank you, Chair.

Thank you very much, gentlemen, for your testimony today and for sharing your expertise on the matter. It's very much appreciated.

I have some initial questions for you, Mr. Bach, with respect to some of the safeguards you propose in your brief. The administration of dying by physicians and medical professionals is a very sensitive topic. We need to be sure that where there is consent, as per the Supreme Court decision, people be allowed to go through this process. At the same time, there's that balance we have to strike for vulnerable persons. I think that's what you're trying to address in your safeguards as you list them here.

You list your safeguards in section C. You also recommend prior review by a superior court. I'm just wondering if you've thought about how long the whole process would take. For example, if a person wanted to begin the process of ending their life, they would go to a doctor and tell them, “This is what I want to do”.

As per your safeguards, could you please walk me through the timeline with regard to how long the palliative care consultation would take, along with the other requirements of the safeguards that are already in the proposed bill?

[Michael Bach]

In talking with palliative care experts—you'll have the opportunity, I believe, to speak with Dr. Harvey Chochinov, who will be appearing here—about this palliative consultation, the suggestion is that you can do a good consultation in an hour and a half. A palliative care physician could assess the situation, examine the sources of suffering, and identify the range of options.

Now, sometimes there are more extensive needs. I mean, one of our main concerns is around such social determinants as the causes of psychosocial suffering, people living in isolation, the burden on family caregivers—

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

I'm sorry, I don't mean to cut you off, but I'm just looking at the time. I'm being very cognizant—

[Michael Bach]

All right. I'll give you this. On the timing related to the judicial oversight, the fuller proposal on this is for a tribunal. It could be modelled on the Consent and Capacity Board in Ontario, which hears 6,500 requests a year. They're bound by legislation to turn around responses within four to five days. My understanding from members who serve on that tribunal is that responses can be turned around in a day. They also do hearings now by video.

It's actually a very efficient system.

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

Just to be clear, the bill already requires 15 clear days from the first consent to the second, so, plus what you're proposing, do you think that would be a little excessive in terms of prolonging suffering, including the court procedures and the extra hoops to jump through for persons who have already made that decision?