Justice Committee on May 3rd, 2016

[Michael Bach]

I guess our concern is that, at the root of this, we think the integrity of the health care system depends on physicians doing their job, which is to examine and address causes of suffering, not to be authorizing intentional interventions intended to cause death. We should separate that out from the health system and keep that on the legal determination, which is why we propose the tribunal. We think that's an important safeguard.

We recognize that there isn't a lot of time to put that in place. That's why we propose that there be at least a commitment do a study on this and that this be embedded in the tribunal.

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

Thank you.

Mr. Marceau, I would like to pick your brain on providing a section 2 analysis, conscience rights, and also religion. We've had recommendations put forward to this committee asking that medical examiners or coroners pronounce on the certificates that the death has been physician-assisted. Do you think that would be a problem for religious organizations or persons who are religious, but choose to go through this process?

[Richard Marceau]

Not to be caricatural and play the role of a Jew, but can I ask you a question back? What do you mean?

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

A lot of people do carry a lot of faith with them, and most religions frown on concepts of suicide. It may be an individual choice, but a family would carry that certificate with them. Do you think the Jewish community would be opposed to having that pronunciation on the last piece of paperwork for that individual?

[The Chair, Liberal, Anthony Housefather]

If you commit suicide you can't theoretically be buried in a Jewish cemetery; they bury you outside the cemetery. We've had proposals from coroners and others that the death certificate should say the person was medically assisted in dying, so that we can track everything properly. Do you think this would be a problem within the religion, that it would cause the family embarrassment and have adverse reactions, is what she's asking.

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

Thank you for that. I appreciate that, Anthony.

[The Chair, Liberal, Anthony Housefather]

Any time. You can save me next time.

[Richard Marceau]

Maybe it's more the lawyer speaking than the Jewish person. I would like an official document to state the truth.

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

Thank you.

This has come up a lot in the committee from different organizations as well as colleagues around this table: protecting the conscience of medical personnel, physicians and nurses, etc. What is the opinion of all three of you on making it an offence in the Criminal Code to coerce a physician into administering death under this bill?

[Richard Marceau]

To make it a criminal offence...to coerce a physician.

We're going to the balance of competing rights here. Those two rights were recognized by the Supreme Court in Carter. I'm not sure we need to go that far as I do believe, as per Carter and as we suggest, that there's a way to make sure the the conscience and religious rights of medical practitioners be respected in that process. Otherwise, it wouldn't make it more legal. If those rights are not respected, this process is not legal per se, and we could go back to the court and take years. You can craft the right balance between those two rights that a lot of Canadians are looking for.

People are for medically assisted dying by the way, and people are opposed to it. If there's one place where I believe there's consensus between those two competing visions, it is this.

[Michael Bach]

You solve the problem by going with advance review, because then physicians aren't authorizing this. They're doing their job as physicians, and that's our proposal to address that concern. It also means that you can have many more physicians in Canada, beyond the one-third who are saying they would do this at this point, who would be willing to step up, because they're not authorizing it, they're just examining causes of suffering and putting options on the table to address it, which is what we should be hoping and expecting of physicians in this country.

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

Mr. Fletcher, do you have some remarks on that?

[Steven Fletcher]

Yes. In Canada you cannot force a physician to do anything. I am aware of a physician who refused to see people who smoked. There was nothing the college could do. It was his choice. What we have to make sure of is that people are not denied their charter rights, and that is the concern I raised earlier about section 141(1)(b). It's not clear that people are made aware of all the options available to them. In fact, it seems that it would be against the law if they were to raise the prospect of death. That is, essentially, a denial of charter rights. But nobody will force anybody in the medical profession to do anything they don't want to do. They don't have to do it now and they will never be able to force someone to do it. The Supreme Court was very clear.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for the very good questions.

Can I just clarify something that was just said? I'm a bit confused. A lot of people from all sides of the debate, as Monsieur Marceau said, have come forward and said that conscience rights should be protected more clearly than is currently the case, in that only the preamble makes some reference to a conscience right. Ms. Khalid suggested one way that could be done, through a criminal prohibition. There are other ways.

Mr. Bach, you seemed to suggest that was unnecessary provided there was the review process, but the review process would only ascertain that the person was competent and willing and that all of the requirements of the law were met. There would still be a physician who in the end would be there—

[Michael Bach]

—to administer the act.

[The Chair, Liberal, Anthony Housefather]

In order to prevent a physician, a nurse, a pharmacist, or anybody who didn't want to do that from being fired or from being coerced into doing it, the thought was to find a way to still add conscience rights. I don't understand how having that added process would stop or change that there would be people of conscience who wouldn't want to do this.

[Michael Bach]

I wasn't suggesting that conscience rights shouldn't be protected.

[The Chair, Liberal, Anthony Housefather]

Okay. I was confused. Thank you. By the way I do appreciate your very clear provisions at the end about what the minister should require. I thought those were very well drafted, and I just want to say I really appreciate the way you set them out so clearly. Whether we accept them or not, I just want to compliment you on that.

Ladies and gentlemen, that puts an end to this committee meeting. I want to thank our witnesses.

Have a good evening, and see you tomorrow.

The meeting is adjourned.