Justice Committee on May 3rd, 2016

[Murray Rankin, NDP, Victoria, BC]

Someone suggested there are no protections in this C-14 for the vulnerable, which, of course, is absurd. One of them is the eight conditions listed in 241.2(3), so-called safeguards, one of which, Dr. Smith, is to provide the opportunity to withdraw consent at the end and in a sense require you to confirm your consent to receive medical assistance in dying at the very last, immediately before the medical assistance in dying is provided. I'd like your views on whether that's workable in the real world of morphine drips and intense pain at the end of life. Is that workable, in your judgment?

[Dr. Derryck Smith]

I believe it is. It's workable in a number of different scenarios. Regarding the first one in which the patient is given a prescription for lethal medication, we know from Oregon that about a third of the patients never take that medication. We know that one of the principals in the Carter case, Ms. Taylor, had the right to have physician-assisted dying and never took that option that was open to her uniquely at that time. Before doctors administer lethal medication, as they have been doing for the last four months in Quebec, we know that the last thing that happens before the injection is that the physician confirms with the patient that they wish to proceed. I think those are adequate safeguards.

When we look at the issue of vulnerability of the disabled, it's nice to talk about that in theory, but these issues were before the courts. There was no shred of evidence that was held by the court to show that anywhere in the world the disabled community is being taken advantage of with these kinds of legislative processes. I simply don't know why we're reconsidering what the courts have already carefully thought about and have rejected.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Thank you very much, Mr. Rankin.

On behalf of the committee, I just want to point out that even in the Carter decision, the court recognized a role for Parliament to legislate in this area. While I appreciate the concern about re-litigating, Parliament clearly does have a role to play in designing legislation, and we have a right to hear from witnesses on different points. I appreciate that.

I'm going to go to Mr. McKinnon.

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

Thank you, Chair.

Thank you to all the witnesses.

Mr. Scher, in your presentation you mentioned that the first problem with Bill C-14 is that it provides legal immunity to any person who directly participates in euthanasia and assisted suicide. I submit to you that's over-broad. It provides blanket immunity to people who assist in medical assistance in dying, which is a much more constrained circumstance.

Would you like to comment on that?

[Hugh Scher]

I don't think that's accurate.

First of all, it says that people who assist in a suicide, even if they're not a medical practitioner, are nevertheless subject to immunity. No, it's not limited to doctors and to nurses, it expands even to broader members including potentially family members, friends, strangers, or community members. It's a very broad clause, something that's not found in any jurisdiction in the world.

[The Chair, Liberal, Anthony Housefather]

Provided that it relates to somebody who helped somebody self-administer a substance that was prescribed by a doctor and dispensed by a pharmacist.

[Hugh Scher]

Yes.

[The Chair, Liberal, Anthony Housefather]

I'm clarifying.

Go on, Mr. McKinnon.

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

What I'm reading here is that no person commits an offence under proposed paragraph 241(1)(b) if they do anything at another person's explicit request for the purpose of aiding that other person to self-administer a substance that has been prescribed for that other person as part of the provision of medical assistance in dying.

[Hugh Scher]

My question becomes: how do you enforce that? How is it in any way possible to enforce that? You've got third parties, friends, family, whoever, who are effectively giving the person the drug behind closed doors in their homes or wherever they are without medical oversight, without judicial oversight, without any oversight, yet they are nevertheless immune from prosecution regardless of the circumstances.

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

I think that's a fair point, but it's actually a different question.

The immunity is not blanket. What I'm hearing here—

[Hugh Scher]

It's blanket for that category of people, sir. That's what I'm trying to say.

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

From this panel there is certainly resistance to the whole concept. I see that a lot of people are fearful that this will not be a solution that is freely chosen by people but one that might be imposed upon them unwillingly. Is that fair?

[Hugh Scher]

I would be hesitant to overgeneralize in terms of the community as a whole. I have been involved in these issues for 25 years on behalf of the disability community, which is a very diverse community including members who are on all sides of this debate. I spent seven years as the chair of human rights with the Council of Canadians with Disabilities, which is Canada's largest disability rights advocacy organization. I have been engaged in this debate from all sides and all angles.

I don't think it is fair to say simply that the perspectives of the people you are hearing here are coming from one monolithic viewpoint. What I would say is that there is a generally held consensus about a lack of effective oversight and sufficiently precise measures to give effect to what the Supreme Court of Canada has said.

I am not trying to relitigate what the Supreme Court of Canada said. I may try to clarify it. For example, when I say that it didn't commit a right to die—it didn't commit a right to euthanasia, and it didn't commit a right to assisted suicide—that is the reality. People may try to advocate other viewpoints, but the reality of what the court did and had the power to do was not that. What it did was strike down as unconstitutional a Criminal Code prohibition against either culpable homicide or assisted suicide. That is what it did. That was its jurisdiction. Then it went on to address various other points. In terms of that issue of blanket immunity, we have talked about it in that context.

The Supreme Court of Canada made this point clearly, and I urge it on this issue and also on the question of advance directives. Despite what I have heard here today, the Supreme Court of Canada did address the question of advance directives clearly. They said they were concerned that there was a need for actual consent at the time of the act and, for that reason, they were not prepared to engage in and allow for advance directives as part of their ruling.

It is not that they didn't address it. On the contrary, they addressed it squarely, and they said that there needs to be clear voluntary consent at the time of the act in order to allow for this measure to proceed. In that context, that applies both to the question of advance directives and to the issue of immunity that I was speaking about earlier. How do you determine that there is actually clear, voluntary, uncoerced consent at the time of the act when you are allowing third parties effective immunity to engage in providing people with medications, often weeks, hours, or months after the time of a prescription, to effectively end their lives? You can't. It is entirely impossible to enforce.

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

On another point, you speak in terms of a medical practitioner's opinion as to whether the conditions are met as being insufficient. You want some manner of proof. What manner of proof do you envision that does not at some point involve a medical opinion?

[Hugh Scher]

The way the system works now, under the existing ruling of the Supreme Court of Canada—which is what I am urging continue—is that there is evidence brought forward, which would consist of information from physicians and from the individuals, stating what their wishes and intentions are, allowing the physician to determine the nature of their medical condition and the extent of it, the fact that they have informed what the nature of the diagnosis, prognosis, and other elements of the condition are, and the fact that all aspects of treatment have been discussed and reviewed with the patient, and the opportunity has been provided to allow for those things.... The way the existing bill reads, none of those things are effectively addressed.

All we are trying to do here, in this bill, is to effectively have two doctors say, “We have conferred, and we agree that the person has consented to this act.” Two witnesses have signed to that effect, and that's the end of it. There is no requirement that says that.... In fact, doctors have taken the steps to ensure that all the required steps of voluntariness, consent, proper diagnosis, and a level of understanding of the options for the patient, in terms of treatment and otherwise, are made known and available to the patient, and to ensure that the requirements of both the Supreme Court and what I would urge this body to implement are in fact adhered to and met.

The way it would work is that there would be, presumably, affidavit evidence from the individual and affidavit evidence from the doctors, including medical notes and records, which would be submitted to a court to determine that all the requirements that ought to have been met, of the Supreme Court's ruling and of what Parliament may enact, have in fact occurred, and that it is not simply a rubber-stamping exercise.

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

Let me interrupt you there. I hear what you are saying.

[The Chair, Liberal, Anthony Housefather]

We have exceeded the time. Do you have a very short question?

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

No, that will be fine.

[The Chair, Liberal, Anthony Housefather]

I would like a very short answer, Mr. Scher, to understand what you just said.

I have read Carter many times. My understanding of Carter is that absolutely the court did not say that there was any right for people who were not competent to pronounce themselves at the time to physician-assisted dying, because they were confining themselves to the people involved in this case, who were both mentally competent.

I agree with you that there was no substantive right that the court recognized, but it sounded to me as if you said the court said that you absolutely couldn't. Obviously, you acknowledge that there is a political choice that could be made to have advance directives that wouldn't be in violation of a court ruling. Is this correct? What you were trying to state was that the court never recognized a right for that subcategory of people in Carter, because they were confining themselves to the people involved in the case.

[Hugh Scher]

I would go a little broader than that. They never recognized a right period, but they did leave it open for Parliament to determine if such a right would be...If Parliament chose to engage and determine such a right, that's in Parliament's power to do so, and not just with regard to advance directives but with regard to the whole notion of euthanasia and assisted suicide.

As I indicated before, the actual effect of the Supreme Court ruling was not to confer a positive substantive right to any individual to access assisted suicide or euthanasia. On the contrary, the Supreme Court determined that the existing prohibitions under the Criminal Code of Canada, to the extent that they did not provide for a level of exception with regard to the people the court identified as having irremediable conditions that led to a pronounced and prolonged level of suffering and difficulty...that those people should nevertheless be then not subject to the Criminal Code blanket prohibition against assisted suicide and culpable homicide.

[The Chair, Liberal, Anthony Housefather]

I understand and I think that's very clear. I just wanted a clarification in relation to Mr. McKinnon's question.

Dr. Smith, thank you so much for appearing from far away by video conference. To all of the witnesses here, I want to thank you profusely for having come. We'll take great note of what you had to say with great passion.

We're going to take a short break for the next panel to come up.

[The Chair, Liberal, Anthony Housefather]

We're going to reconvene with the next panel of witnesses. It's a pleasure to have each and every one of you with us today.

We are joined by Steven Fletcher, a former member of Parliament and a new member of the Legislature of Manitoba. Congratulations on your election.

We are joined by the Centre for Israel and Jewish Affairs, represented by Richard Marceau, a former member of Parliament, who is the general counsel and senior political adviser. Welcome, Mr. Marceau.

We're also joined by the Canadian Association for Community Living, Mr. Michael Bach, who is the executive vice-president. Welcome, Mr. Bach.

Each of you has eight minutes, then we're going to move to questions. As all of you know, we're studying Bill C-14, so we would very much appreciate if you would comment on the bill itself and the proposed amendments to the bill, and not general comments you may have made to the special committee.

That being said, Mr. Fletcher, the floor is yours.

[Steven Fletcher, As an Individual]

Okay, thank you, Mr. Chairperson.

Thank you everyone for the opportunity to comment on Bill C-14.

My comments are going to be brief and focused on the bill. I've already spoken in front of the joint committee, and I initiated some private members' bills in the previous Parliament on this issue. I've also written a book called Master of My Fate on the parliamentary process.

I would like to first of all commend everyone involved. This is a difficult issue. There are some very good things in the bill. I found in many ways that it mirrored the private members' bills that I had introduced. This includes the provisions around making sure that people who may have a vested interest in the demise of an individual are not involved in the decision-making process. I encourage you to keep that in the bill. It's not an amendment; it's a thumbs-up for what is there.

I would also say that on the age of consent at 18, the bill is probably realistic at this time.

I think, though, that we need to collect empirical data over the next few years to find out where the demands and the needs are, and why people would request a physician-assisted death, by having a mandated parliamentary report that is public, with empirical data. It could perhaps be funded through the Canadian Institutes of Health Research. In order to make good public policy, you need good empirical data, especially on such a difficult issue as this.

Now, on the amendments, the Supreme Court was very clear that sections 241 and 14 of the Criminal Code unjustifiably infringe on section 7 of the charter and are of no force or effect at this time. Moreover, the Supreme Court made it very clear that the prohibition for physician-assisted death for a competent person “who...clearly consents to the termination of life and...has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that it is intolerable to that individual in circumstances” that they find themselves in....

The bill clearly is not consistent with the Supreme Court decision on the issue of terminal illness and that you have to be on a trajectory of end of life in order to take advantage of one's charter rights. I can understand, politically, why this was done, but it is quite frankly something that will go to the courts, and it will be changed to what the Supreme Court says. You cannot deny someone their charter rights because they happen to have a disability that may last 40 years, or an illness that goes on forever.

There are unfortunately many such situations that exist, such as ALS. There's also MS or stroke victims. There are many permutations of illness, and by saying that they have to be on a death spiral essentially denies them their charter rights.

The other comment I would have is on proposed paragraph 241(b). It's not clear to me that someone would be made aware of all their charter rights, including physician-assisted death. It seems to say that, if you raise it with someone, you are in deep trouble. I think people would like to know the entire range of options is available to them, including physician-assisted death in some cases. It seems to forbid medical practitioners from expressing that—or anyone else for that matter.

Regarding advance consent, I think this should be part of the mandate of whatever you decide to do for the future. It may be a bridge too far this time around. We've come a long way in a couple of years, but I can understand the challenges with that. But again, if someone has dementia or something happens to them in the future, why can they not state what their preferences are before they lose their cognitive ability? There's nothing in the Supreme Court decision that would prevent that.

Finally, there's been a lot of drama around the Supreme Court decision in the last year, and people are trying to weave their way through a difficult legislative process. I very much get the challenges that you have as MPs, but at the end of the day, it's all going to come back to what the Supreme Court has said.

Committee, without the amendments, particularly in proposed section 241, you're going to have to decide if you are going to force people who are disabled or have a disability or illness to go to the Supreme Court to exercise their charter rights or if you accept what is inevitable and just replace the wording with what the Supreme Court said in the first place.

I'd like to thank everyone for the opportunity to be here today. Of course we always have to realize that offering more resources for people is important, but sometimes all the resources in the world don't make a difference or can't make a difference, and people are suffering every day. We need to be empathetic to those people.

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Fletcher.

We will now give the floor to Mr. Marceau.

Mr. Marceau, we are listening.