Justice Committee on May 3rd, 2016

[Prof. Carrie Bourassa]

Well, I definitely want the bill to be amended so that they're at ease with it, because I know it's going to go forward. I wish I would have pulled the recommendation that went forward in the last parliamentary committee, because an amendment was made and there was a recommendation for cultural safety training. I'm not sure how they did it, because I realize training is a provincial jurisdiction, but the last time I presented on physician-assisted dying, an amendment around the need for cultural safety training was made. I'm not sure how the wording happened. I'm not sure how the committee managed it, but this is why I'm bringing it up again.

I do feel there is a need to talk about cultural safety, whether in terms of training or the need for cultural safety in our health care system. Health care on reserves is actually a federal responsibility, so I think there's something to be said for that. I'm not sure how to word it. I'm not sure how to wrangle it, but I think it is going to be difficult to create a sense of ease in the communities if that issue is not addressed. I think it's going to be difficult anyway. I was asked about the issue of suicide. In our communities, in our traditional languages, there wasn't even a word for suicide. It's difficult to discuss the issue of medically assisted dying. I know it is not the same as suicide, but in our communities....

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

I am sorry, but our time is limited. Thank you for clarifying that at the federal level, the question of training is also relevant to us in your case.

Mr. Gunn, my second question is for you.

I found your four recommendations very interesting, particularly the ones concerning advance directives or advance medical requests, and the disputes this can lead to. Ultimately, this will result in people having to go to court.

In your presentation, I found it very interesting that an alliance representing people with disabilities is concerned about the interpretation problem that doctors will be facing.

I would like to hear you on this subject because it is important that our law be very clear and not put doctors in a difficult position because of interpretation problems. I would like you to talk more about the difficulty for doctors in interpreting the words "reasonably foreseeable death" in particular.

[Angus Gunn]

The general proposition that I was citing for the committee, particularly when we're dealing with the criminal law, was that it's critical that persons subject to that law know what their legal jeopardy is in advance of performing the act. So, to the extent that language describing the criminal offence incorporates terms that are almost impossibly vague, that dilutes the force of that principle and exposes individuals to criminal jeopardy when they ought not to be exposed. That is a problem, as the honourable member says, for physicians. It's also a problem for individuals. One should not have to undertake a course of action without knowing what its criminal consequence is likely to be. So in my submission, the criterion of being reasonably foreseeable is laden with that type of ambiguity. It's not required. It's not required by Carter, and it's not required in principle. In my submission, it simply adds a further layer of ambiguity to this provision.

[The Chair, Liberal, Anthony Housefather]

You have time left for a very short question.

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

I have a very brief question to ask our last witness, Ms. Self.

You talked about the importance of communication professionals being present. I am concerned about eligibility and the constraints associated with the fact that there are no such professionals in remote areas or in the whole of our territory. To your knowledge, are there any in all of our territory? Are you talking about speech therapists? What professionals are you talking about, exactly?

[Hazel Self]

In terms of trained speech pathologists, on our website www.cdacanada.com we have a roster now of what we call communication intermediaries. Over 200 speech language pathologists are trained to be in court with someone, for example, not just to be a communication assistant. These are individuals who understand the complexity of communication. For example, they can illustrate to the court how the person's communicating, and demonstrate how their message is authentic—and theirs. They're not filling in the gaps for them, etc.

We have that roster across the nation of 200 speech language pathologists as communication intermediaries. I know that wouldn't necessarily reach every corner of the country, but it's a massive start, this work we've been doing.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

We'll now go back to the Liberals.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

I appreciate everybody's attendance today, and the presentations. Thank you.

I'd like to start with the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society. In response to one of my colleague's questions earlier, there was a question regarding advance directives and the compliance with Carter. Carter is silent on advance directives. You mentioned that you believe it should be included in the bill, some allowance for advance directives, because of the section 7 arguments that are bound to come before the court. I'm wondering, given the preamble to the bill, which does recognize there would be some further study of this....

In number four of your recommendations you talk about mature minors and mentally ill, and going to further study, but by a more robust or ambitious type of independent expert who would make recommendations that would come back to Parliament, I presume. We heard from a witness earlier today that with regard to advance directives, one thing we could do is send it out to independent experts and report back to Parliament within 18 months.

I'm wondering if you would agree that doing that for advance directives, as well as for the mature minors and mental illness, would be satisfactory.

[Margaret Birrell]

I'd like to talk about the advance directives. The minister recently said that those amendments will be looked at within the next five years—five years. The government may not be in place to be the government at that time. We need to look at advance care directives now, not five years from now, and not putting off all the other issues that were raised by Mr. Gunn today.

We have to move on advance care directives, because what we are saying is that—

[Colin Fraser, Liberal, West Nova, NS]

If I can just interrupt for one moment, maybe I didn't make myself clear, and I apologize for that. My question really is this. A witness earlier today testified that we should send it to an independent expert panel and report back to Parliament in 18 months, which is similar to what you are recommending for mature minors and mentally ill patients. That's different from what's in the preamble now.

Would that satisfy your concern?

[Angus Gunn]

The reason we differentiated advance directives on the one hand and those other two subjects on the other is that, as I think we all recognize, the issues with regard to mature minors and mental illness are a level of complexity that does call for additional study.

In our respectful submission, the issue of advance directives has already been the subject of extensive consideration. It was of course the subject of a recommendation by the joint committee. It's not of the calibre that necessitates that further study. In our submission, enough is known about that issue to take it forward. The same is not true of the other two, in our submission. That's why we drew that distinction.

[Colin Fraser, Liberal, West Nova, NS]

Okay. Fair enough.

A specific provision that I don't believe was mentioned is the one requiring basically a second consent just before the moment that medical assistance in dying is provided. I guess that's under the safeguard provisions of proposed paragraph 241.2(3)(h). So this requirement, where you get the second consent immediately before medical assistance in dying, is provided. There has been some commentary that this could lead to situations where somebody who's on medication has to be taken off morphine, for example, in order to then be capable of giving that second and final consent.

Do you have any comment on that?

[Angus Gunn]

Each requires that the person be given an opportunity to withdraw a request and ensures that the person give express consent, so it is a premise of that provision that the person be capable and competent to give express consent. An advance directive is obviously a context in which that's not going to be true, and there may be situations, as you indicated, in which the level or type of medications used impairs decision-making capacity. Age is going to be a problem for the legislation if it intends to facilitate advance directives.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

I'll move now to a question for Communication Disabilities Access Canada. I appreciate your presentation and the difficulties that people with communication challenges face when dealing with physicians.

Are you aware of any legislation or any requirements currently in place that would require a physician to refer out somebody who does not have the capability?

[Hazel Self]

No, there is none, and that's actually another crusade we're on. It's totally lacking. There are other parallels. For instance, if you need sign language interpretation, etc., that's mandated to be provided by the organization. There is nothing equal for someone with speech language disability. No legislation exists.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Finally, I have one quick further point.

Professor Bourassa, thank you for your testimony today. The current bill indicates that either two medical practitioners, i.e., physicians, or two nurse practitioners, or one of each can be involved. There's been some discussion that perhaps there should be at least one physician, one medical practitioner, and that the other person could be a nurse practitioner. Given your comments regarding access in remote areas and the fact that indigenous people may have trouble accessing two physicians, do you have any difficulties with it being just two nurse practitioners or would this satisfy any concern you have?

[Prof. Carrie Bourassa]

I wouldn't have any problem with it being two nurse practitioners as long as, again, the training was appropriate.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'd just like to ask one short question, if everybody is okay with it, to Ms. Self.

Ms. Self, I agree with you that for proposed subsection 241.2 (4), there needs to be clarity in this provision with respect to the fact that this person has made their request very well known, I think not only to the person signing on their behalf but also to the two witnesses. Therefore, to my mind, if they couldn't write, they would have to verbally make clear to the three people—the other person signing and the two witnesses—that they were asking for this.

For people who cannot write and cannot verbally communicate, is there some other means that we should provide for in this context?

[Hazel Self]

I think that's where you have the professional there to guarantee that it's the person's directive on signing. We're saying “under their direction”, but all through this process, if someone has speech language disability or communication disability, we need that professional in there supporting the accommodations. It's an accommodation issue.

[The Chair, Liberal, Anthony Housefather]

Witnesses, I want to thank all three of you again for your very compelling testimony. We're going to read your briefs very carefully, and we thank you very much for agreeing to join us today.

For the members of the committee, and all those who are here, we have about a 15-minute break before the next panel of witnesses. I encourage everyone to take that break, and we'll reconvene in 15 minutes.

[The Chair, Liberal, Anthony Housefather]

Take your seats please.

We are back in session.

I want to thank all of the members of this witness panel for joining us. It's a great pleasure to have you here.

I believe we have Mr. Smith on video.

I just want to explain what is going to happen. There are three groups presenting, and each group will have eight minutes to present, and then you will receive questions from the MPs. You will receive six minutes of questions from the Conservatives, six from the Liberals, six from the NDP, and then we'll see how much time is left.

I'm very pleased to introduce Mr. Derryck Smith from Vancouver, who's testifying via video conference as an individual. It's a pleasure to have you, sir.

From the Euthanasia Prevention Coalition, we have Ms. Amy Hasbrouck, who's the vice-president; and Mr. Hugh Scher, who's the legal counsel. It's a pleasure to have you with us.

From the Association for Reformed Political Action, we have Mr. André Schutten, who is the legal counsel; Mr. James Schutten; and Mr. Pieter Harsevoort. It's very nice to have all of you here.

Mr. Smith, the floor is yours.

[Dr. Derryck Smith, As an Individual]

Thank you.

My name is Derryck Smith, and I'm a medical doctor and a practising psychiatrist. I appreciate having the opportunity to speak to the committee, and I particularly admire the hours that you're keeping in bending your minds around this thorny issue.

My name is Derryck Smith. I'm a medical doctor and a practising psychiatrist in Vancouver. I was an expert witness in the Carter case, and I'm on the board of Dying With Dignity Canada, but I'm presenting my own personal views tonight.

My amendments, which are in my brief, really try to get us back to the recommendations of the special joint committee and the language of the Carter decision.

The issues that resonate for me with this issue have to do with the autonomy of individual citizens in terms of the autonomy to control our lives and the autonomy to have some control over our deaths. This was first articulated by Sue Rodriguez when she appeared before the Supreme Court more than 20 years ago. My concerns are that the forces who are opposed to aid in dying have rallied their forces and are attempting to water down or narrow the findings that came out in Carter and the special joint committee. I see that as a detriment to the issue of assisted dying for Canadians.

I recently attended a forum in Vancouver that was purported to be a meeting of the Faculty of Medicine to give the Minister of Justice our views about physician-assisted dying. I initially wasn't invited; I had to get myself invited. I was one voice amongst a group of others. I think the deck was pretty much stacked so that the minister would hear only from those who were opposed to physician-assisted dying, including palliative care doctors, who are on record as opposing physician-assisted dying, doctors from Catholic hospitals, and witnesses who had appeared before Carter to testify for the government and who had their testimonies rejected by the court.

This group of people I think collectively were recommending that we go further, saying that we can't let two doctors decide on these issues, but that we must have a judicial hearing for each and every case. I've had experience with two judicial hearings in western Canada, one of which took place yesterday, in which the suffering elderly patient, who has a “grievous and irremediable” illness, was in front of a judge asking to have assistance in dying. Suddenly the Attorneys General of Canada, Alberta, and British Columbia appeared to oppose them. This puts a huge burden on individuals who are having to pay for a lawyer and are having cases adjourned. I see this as being a real burden of suffering if we go down that road, so I'm certainly speaking against that kind of amendment.

The three issues that resonate with me are the issues of dementia, mental illness, and, to a lesser extent, individuals younger than age 18. The reason for individuals younger than 18 being one of the issues is a relatively minor problem, because the number of individuals is going to be relatively small. Similarly, in regard to mental illness, the numbers of individuals who have grievous and irremediable mental illness will be very small in number. We know that from other countries.

The issue that really resonates with me is the issue of dementia. I speak on a very personal level, because I witnessed my mother-in-law and father die from dementia. This is an ugly, debilitating illness. In the latter stages of dementia, we end up being incontinent of urine and feces, being speechless, and having no idea of who we are or who our families are. This is a state that can go on for months, if not years. I for one do not want to live like that, and I cannot imagine that most Canadians do.

We already have advance directives in legal force, such that we can have do-not-resuscitate orders, and we urgently need the ability to attach advance directives to the ability to have aid in dying at a time when we may not be competent. There's going to be a large number of Canadians who are negatively impacted by dementia over the next few years.

My concern is that if we study these three issues over the next five years, a certain number of Canadians are going to suffer needlessly. We do not need to do that. Personally, I don't see that there's much need for additional study with the issue of dementia at all. I would urge you to take up my recommendations and move amendments to get us back to the joint special committee's recommendations, or at least back to the language of Carter.

Thank you. I think I'll conclude my comments there.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Dr. Smith.

I note that we don't have a copy of your written submission. I think you meant to send it, but it didn't come through with the email. I'd appreciate it if you could resend your written submission so that we can look at your proposed amendments.

[Dr. Derryck Smith]

I will do that but, I can't do it during this conference call.

[The Chair, Liberal, Anthony Housefather]

No, I didn't mean that at all. I meant after the hearing today. It would be great if you would do that, because of course we want to read it.