Justice Committee on May 4th, 2016

[Ahmed Hussen, Liberal, York South—Weston, ON]

I'd like to begin with Mr. Clemenger and Ms. Beazley.

You indicated in your submission that in proposed paragraph 241.2(2)(d) you would keep the focus on those who are dying and replace “reasonably foreseeable” with one of the following: “within reasonable medical judgment will produce death within six months, or at the end of life”.

Why did you pick six months?

[Julia Beazley]

We didn't necessarily pick six months. That was just one of the time frames that was being discussed.

I think we need to remember that in the Carter decision some of the statements made included the words “vague”, “grievous”, “irremediable”, and those kinds of things. The justices were talking about a specific fact situation and referred back to this concern that somebody would take their life prematurely if they would not have assistance available to them at a later time when their suffering became intolerable and they were unable to end their lives themselves.

This implies that the patient has reached a point where they're nearing the end, and they're no longer able to take their own life. This is a key element in the Carter decision. We're talking about people who are not physically capable of taking their own lives, which implies a state of irreversible decline in capability. It implies that death is reasonably foreseeable.

I am not a lawyer, so I am by no means a legal expert. However, to my understanding, what is in this bill complies very closely with the Carter decision.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Sure.

I'd also like to talk a bit about another thing in your submission. You wanted an extension of the judicial oversight process or an independent prior review process for all cases of medical assistance in dying. Could you elaborate on the independent prior review process you have in mind?

[Julia Beazley]

I've heard different ideas of what this could look like. Yesterday you heard from Mr. Bach about capacity and consent boards. This is a body that makes final approval on certain kinds of decisions, so it could be made up of lawyers, medical professionals, and so on.

I don't necessarily have an opinion about what exactly the makeup of that body should look like, or what precisely the mechanism should be, unless Bruce has some ideas on that. The key for us, as I said, is that there be some prior review of every case.

All of those safeguards I mentioned earlier are there to protect the patient, to protect the practitioner, and to protect vulnerable people in general.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Have you considered the issue around accessibility, costs, and the fact there would be a lot of delay—our courts are already backlogged—if you were to go down the judicial route. Is that something you've looked at?

[Julia Beazley]

You've heard testimony that for the capacity and consent boards, it's a quick turnaround. It can be a 24-hour period where a decision is reached and they get the approval to go ahead. It doesn't have to be something that creates a long delay. Again, I'm not a lawyer, but I imagine a system could be established that was fairly simple, straightforward, and streamlined.

I don't like the idea of it being prohibited to individuals based on cost by any means.

Maybe judicial oversight can be modified so that's not a consideration. I don't know the details, but it seems to me there is a way, if we work with the provinces and put our heads to it. We can figure out what is a simple streamlined process that will be efficient, that will not create unreasonable delays, and that will be a safeguard.

[Ahmed Hussen, Liberal, York South—Weston, ON]

Thank you.

I'll turn to the Canadian Council of Criminal Defence Lawyers.

Mr. DelBigio, I don't know what your thoughts are with respect to mature minors. Are you comfortable with the law keeping it at 18 and over?

[Greg DelBigio]

I will make two remarks with respect to that. It is an example I gave of something being outside the scope of Carter, and so not mandated. I think it is best left to a committee like this to hear expert testimony from others.

I'll use this as an opportunity to say that my suggestion is that a five-year review is simply too long a time period, that it should be a shorter period of review, and that a review clause can specify certain topics that must be reviewed and considered. Perhaps a review clause would mandate that the issue of mature minors, for example, would necessarily, as a matter of law, be considered.

[The Chair, Liberal, Anthony Housefather]

I have one short wrap-up question if it's okay with the panel.

You are the first people who have raised the issue of changing “reasonable but mistaken belief” to “honest but mistaken belief”, so I have a question. I'd appreciate your perspective.

I'd like to ask a question, and I'll give you a concrete example. Dr. X has a friend, Mr. Y. Mr. Y comes to Dr. X after this law is adopted and tells Dr. X that the law says only doctors are allowed to perform medically assisted suicide, and his wife has requested medically assisted suicide. He says she is lying in their bed in their home, very sick, and suffering interminably. The wife is lying there, sedated, and Dr. X is told that there is no other requirement in the law other than the one that a doctor perform this act. Dr. X goes ahead and performs this act at the request of Mr. Y.

Dr. X never looked to see what the law said, and he made no effort to be reasonable and understand what the provisions of the law were, but he had an honest but mistaken belief, based on his relationship with Mr. Y, that this was perfectly okay. Based on what I understand, although I have to research what the common law actually says with respect to honest but mistaken belief, this doctor could have had an honest mistaken belief, based on what his friend told him, while doing no investigation whatsoever, and factually, she was out. He was grossly negligent, but he may have been honest. Do you believe that type of person should not be charged with murder or homicide?

[Richard Fowler]

No, not necessarily. The point is, we're dealing with this legislation and how this legislation deals with an exemption for what is otherwise first-degree murder. When one appreciates what the mental state is for first-degree murder and one appreciates the way the legislation is presently constructed, it is my view that somebody who has simply made an objective error could be convicted of murder. That's problematic.

The legislation is also internally inconsistent in this respect. There is the offence of “failing to comply” with the safeguards. It's hard to reconcile that offence carrying a maximum of five years, because failing to follow the safeguards would mean that you're also committing a culpable homicide. I don't actually understand what type of conduct that offence is actually gathering, because deliberately.... The offence that's in the statute is about people who knowingly fail to follow the safeguards, which is actually different from the example that I've given of somebody who made a mistake honestly but it was an unreasonable one by an objective standard.

Here, in the statute, you're saying, well, people who flaunt it deliberately and knowingly fail to follow these safeguards face the five-year maximum, but in reality they wouldn't, because they would also be committing a culpable homicide. I find that part of the legislation internally inconsistent.

[The Chair, Liberal, Anthony Housefather]

That, I understand. I think a prosecutor would have it open to him/her to charge in either direction. I agree with you that it is an open question. What I think you are actually proposing, then, is that for somebody who had an honest but mistaken belief, theoretically there might be a provision where we say that's a lesser sentence. If they're charged with something, they should not just be charged with first-degree homicide—

[Richard Fowler]

Yes, that's—

[The Chair, Liberal, Anthony Housefather]

—based on an unreasonable action where they were negligent or grossly negligent.

[Richard Fowler]

I mean, that's a possibility. Or there's a possibility of requiring that medical practitioners follow a standard of care, and if they don't, they then could be liable for criminal negligence causing death.

[The Chair, Liberal, Anthony Housefather]

I understand.

[Richard Fowler]

That would be entirely consistent, because it would be an objective standard.

By the way, criminal negligence causing death carries a maximum of life. It just does not have a minimum sentence of life, nor does it have a 25-year parole ineligibility period.

So there are other ways of dealing with it. You just have to avoid the absolute and necessary possibility, because of the way the exception is crafted, that somebody would have to be prosecuted for first-degree murder. That's the problem with how it's presently written.

[The Chair, Liberal, Anthony Housefather]

I understand. You think it's too severe.

[Richard Fowler]

Yes.

[The Chair, Liberal, Anthony Housefather]

I understand. Thank you very much.

Panel members, I want to thank you for your very clear testimony today. It is much appreciated.

We'll take a brief break and let the members of the next panel come up.

Again, thank you so much.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, we are resuming.

Thank you very much to our witnesses for their incredible patience and for bearing with us given the votes tonight. We really appreciate it. We're ready to give you our full attention.

I would like to welcome Professor Jocelyn Downie from the faculties of law and medicine at Dalhousie University, who is appearing as an individual; from the Canadian Council of Imams, Mr. Sikander Hashmi; and from the Justice Centre for Constitutional Freedoms, Mr. Jay Cameron.

Welcome all of you. We very much are interested in hearing from you. We're going to start with Professor Downie.

[Prof. Jocelyn Downie, Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual]

Good evening, and thank you for the opportunity to testify before you tonight.

In the time available to me I will not praise the bill, despite the fact there is indeed much to praise in it. I'll instead focus on suggestions for changes to the bill.

The reasons for these suggestions are that Bill C-14 is inconsistent with the Supreme Court of Canada's decision in Carter v. Canada. That is, it is inconsistent with the Canadian Charter of Rights and Freedoms for individuals who meet the Carter criteria. Bill C-14 is also inconsistent with the charter in relation to mature minors, individuals with mental illness, and requests made in advance of loss of capacity.

Unless Bill C-14 is amended, many individuals experiencing enduring and intolerable suffering from grievous and irremediable conditions will be left with three options. They can take their own life prematurely, often by violent or dangerous means; they can stop eating until death by starvation is not too remote or in the not too distant future, such that they will then qualify for assisted death; or they can suffer until they die from natural causes. This is a profoundly and unconscionably cruel choice.

Proposed subsection 241.2(2) unjustifiably limits access to medical assistance in dying. There are a number of problems here. First, contrary to the government's assertions, Kay Carter of Carter v. Canada would meet the Supreme Court of Canada's criteria for access, and yet would not meet the bill's criterion of a reasonably foreseeable natural death. Kay Carter had spinal stenosis. This is not a life-limiting or terminal condition.

There is no indication in it's decision that the Supreme Court of Canada thought that Kay Carter's natural death had become reasonably foreseeable in terms of temporal proximity. There was no evidence on the record before the court that Kay Carter's death was reasonably foreseeable in any temporally proximate way. In fact, it was just the opposite.

To pick but one of many possible examples from the evidence before the court, as Kay Carter wrote in her letter to Dignitas clinic in Forch, Switzerland:

The neurologist, Dr. Cameron of North Vancouver, assessed me and I had a CAT scan and MRI done. From these tests he told me that I had an ongoing, slow deterioration of the nerves that would never kill me but eventually would reduce me to lie flat in a bed and never move.

Second, the government's position on Kay Carter, mental illness, major physical disability, and Bill C-14 is incoherent. The government has no evidence upon which to conclude that Kay Carter's death was not too remote, apart from the fact that she was old. On the logic of its position, if someone has a non-life-threatening mental illness or major physical disability as their sole condition, as long as they are old, they will be eligible. Yet this is precisely what the government is trying to prevent with proposed paragraph 241.2(2)(d). So either Kay Carter didn't meet 241.2(2)(d), or Bill C-14 allows access to medical assistance in dying for individuals whose sole condition is a non-life-threatening mental illness or major physical disability. The government is trying, but they cannot have it both ways.

Third, the phrase “reasonably foreseeable” is untenable as a criterion for access. “Reasonably foreseeable” is impermissibly vague. The debate about whether Kay Carter herself would meet this criterion makes this point crystal clear. The government's suggestion that “reasonably foreseeable” be interpreted as “in the not too distant future” or “not too remote” flies in the face of common usage where it means predictability, not temporal proximity.

Contrary to claims made by the government, the meaning proposed for “reasonably foreseeable” in the government's glossary and public remarks is not consistent with the meaning of “reasonably foreseeable” in either the criminal law or tort law where it means predictability, rather than temporal proximity. That is, it means you can “foresee that” rather than “foresee when”.

I'll now turn to my proposed solution.

First, delete proposed subsection 241.2(2). Second, add “including an illness, disease or disability that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition” to proposed paragraph 241.2(1)(c). Third, add the following definition: “Irremediable” means “cannot be alleviated by means acceptable to the person”. Fourth, replace references to “reasonably foreseeable” elsewhere in the act.

Now I'll move to my second issue, namely, the exclusion of mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. It is important to note that the government has acknowledged that Bill C-14 limits the charter rights, specifically by excluding mature minors, individuals with mental illness as their sole condition, and requests made in advance of loss of capacity. However, it has failed to provide parliamentarians with any reasonable basis on which to conclude that these limits are, for section 7 rights, in accordance with the principles of fundamental justice, or for both the sections 7 and 15 rights, demonstrably justified in a free and democratic society. In other words, you have not been given anything solid upon which to base a conclusion that this bill does not violate the charter.

The government provided a legislative background document to explain why it has concluded that Bill C-14 is consistent with the charter. However, this document's justifications for limiting the rights are grossly inadequate. The document's weaknesses include the following: misrepresentation of legislation in the permissive jurisdictions; misrepresentation of data from the permissive jurisdictions; reliance on unreliable sources of evidence for claims about the permissive jurisdictions; reliance on an ethical distinction explicitly rejected by Justice Smith in Carter; reliance on assumptions that are fundamentally inconsistent with the advance directives legislation in place in provinces and territories across this country; and reliance on a staggeringly unbalanced set of experts.

Contrast it with two other significant documents that are available to help guide you in your decision-making, the report of the Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying, and the report of the Special Joint Committee on Physician-Assisted Dying. Given that they do not share any of the legislative background's weaknesses, I would argue that it is more reasonable for you to rely on them than on the legislative background document, and I would remind you that they both recommend against excluding mature minors, individuals whose sole grievous and irremediable condition is a mental illness, and advance requests.

As for solutions, I think the best solution here would be for you to make amendments to Bill C-14 to make it consistent with the recommendations of the provincial-territorial expert group and the special joint committee, and thereby the charter.

The second-best solution would be for you to have the provisions just mentioned, but have them come into force two years after the act receives royal assent, giving time for the development of policies and procedures and education of health care professionals and the public. However, note that this relates to how, not whether, to include these elements.

As an absolute bare minimum, I would argue that you should delete the preamble's reference to a commitment with no deadline for an exploration of the contested issues of mature minors, advance requests, and requests where mental illness is the sole underlying medical condition. Add a statutory mandate that is in the body of the act for independent expert studies of the contested issues with a prescribed and short deadline—for instance, 18 months—for reporting back to Parliament.

A mere preamble reference to a commitment to do reports on these three pressing issues is too weak when charter rights are being limited and the only question is whether the limits can be justified. Real people suffering in agony will have their charter rights limited every day until the government commissions the studies and then reports back to Parliament. They deserve more than Bill C-14 provides.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Downie.

Now we'll go to the Canadian Council of Imams. Mr. Hashmi, the floor is yours.

[Sikander Hashmi, Spokesperson, Canadian Council of Imams]

Thank you very much, Mr. Chair.

Good evening, everyone. I'd like to extend our thanks to each of you for all the long hours that you've put in here doing some very important work for us. Thank you very much.

In the Islamic faith tradition, neither euthanasia nor assisted suicide is supported or encouraged. However, since that matter has already been decided by the Supreme Court, our concerns and recommendations regarding Bill C-14 centre around three things: safeguarding the interests of patients in distress, minimizing errors, and conscience protection for health care providers and faith-based facilities.

Most Canadians would agree that life is sacred and that an effort should be made in most if not all circumstances to preserve it. The Koran highlights the importance of saving a life. In verse 5:32 it says: “Whosoever saves a life, it is as if they had saved humanity entirely.” Undoubtedly, the issue of assisted dying is of concern to many Canadians. Canadians are caring people. When we see others in pain and distress, we want to help.

Muslim faith leaders, along with those of other faiths, have a long tradition of caring for the ill. We have witnessed first-hand the terrible toll that illnesses and pain can take on patients and their families. We understand that in some cases, patients experiencing extreme levels of pain and suffering and those expecting the same in the future may desire an end to their life. We empathize with them, and as we draw from our faith traditions, we are instructed to pray for them to gain relief from their suffering and to try our best to make them comfortable by providing the best possible care.

We also know that when a human being voluntarily seeks an end to their life, it is a testament to the extreme pain and distress that they are experiencing or that they are fearing. It is a cry for help.

Whenever an individual seeks to end their life, we as a society know not to grant them their wish. Rather, we offer them compassionate care and assistance with the aim of alleviating the pain and distress that they're experiencing. We never assist them in ending their lives and instead make efforts to dissuade them from doing so.

Requests for death due to pain and distress caused by illnesses or disabilities should be dealt with in a similar manner.

We therefore recommend: first, that under safeguards, Bill C-14 require medical practitioners to ensure that after making a request for assisted death, patients are met by an end-of-life care team consisting of a psychiatrist, a social worker, and, if the patient so wishes, a spiritual care provider; second, that members of the end-of-life care team be required to discuss with patients the reasons for the request and present all available care options to ensure that patients are voluntarily making informed decisions; third, that the end-of-life care team and the medical practitioner confirm that all available treatments and pain reduction techniques have been exhausted and that they have not been able to make the suffering tolerable for the patient under conditions that they consider acceptable.

While Bill C-14 offers some safeguards, we believe there should also be measures in place to ensure that patients and the vulnerable are protected from errors that could have serious consequences. We therefore also recommend that the ability to provide assistance in dying, including access to substances that cause death, be limited to specially trained and certified health care practitioners authorized by the Minister of Health and the Minister of Justice.

This would entail modifying the text of the bill by adding the phrase, “authorized by the Minister of Health and the Minister of Justice” after all references to medical practitioner or nurse practitioner when referring to those permitted to provide assistance in dying.

We are also very concerned about the protection of conscience rights of health care providers and faith-based facilities. Conscience rights should be given the same level of importance as the patient's right to seek assistance in dying. In our view, the level of disengagement from assisted death should be at the discretion of individual health care providers and faith-based care facilities and should be publicly disclosed to would-be patients. This should be specified in the bill.

We firmly believe that as Canadians we must do more to provide compassionate care to those who are ill and to find better and more effective ways to alleviate their suffering and improve their quality of life. We believe it is possible for the federal and provincial governments to respect the Carter decision while promoting the sanctity and value of life.

Instead of encouraging death, let us come together to enhance and cherish life. Thank you very much.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Imam. That was much appreciated.

Now we'll go to Mr. Cameron.

[Jay Cameron, Barrister and Solicitor, Justice Centre for Constitutional Freedoms]

Ladies and gentlemen, thank you very much for having me here tonight. I'm here on behalf of the Justice Centre for Constitutional Freedoms, which is a non-partisan, non-religious charitable organization. Our emphasis is focusing on the charter rights of Canadians, with a special emphasis on the charter rights found in section 2.

I'll start by complimenting the attorney general on Bill C-14, because I think there's much in it that's commendable. While I'm here tonight to talk about conscience rights specifically, I think it's important, given what I've heard here so far tonight, to mention that we believe that Bill C-14 gets a number of things right. It keeps accessibility to this to people who are adults. It keeps the decision with respect to access made for those who are competent at the time of making the decision. We think it gets right that an individual needs a physical ailment and that a person must be mentally sound.

A timely report was released today by what was formerly known as the British Medical Journal. It's now called the BMJ. It was released today. It's been reported on internationally. What it said was that medical error is the third-leading cause of death in the United States. I just want this committee to think about what that means. That means that the medical community, when they're attempting to save somebody's life and prolonging health, kills almost as many people—the third-leading cause of death—as cancer and heart disease in the United States. The system of reporting deaths in Canada, the U.S., and the U.K. relies on what's known as a mortality coding system. It doesn't capture death from medical failure, so it's unknown exactly how many people are being killed accidentally in Canada by the medical community.

My point in referencing that is simply this: mistakes happen, and there are people who are vulnerable in this country who need to be protected. It's apparent that they need to be protected from the very people who are being given licence right now to assist a person to die. It's with great solemnity, I think, that this issue comes before this committee.

The court in Carter said that “Complex regulatory regimes are better created by Parliament than by the courts.” It was in the context of noting the need for legislative reform to allow for medical assistance in dying that the court discussed and reiterated the conscience and religious rights of medical practitioners, stating that “nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” That's at paragraph 132. Instead the court underlined that “The Charter rights of patients and physicians will need to be reconciled...”. It was within the rubric of reconciling those rights that the court in Carter suggested statutory balancing, statutory address. Unfortunately, Bill C-14 fails to do that.

It's our continued recommendation that, in order to comply with Carter, Bill C-14 should codify the protections for the conscience rights of physicians, nurses, pharmacists, and other health care workers, as well as health care organizations and institutions, to refuse to participate in and refuse to refer for MAID.

The applicants in Carter neither sought nor received a charter right to compel doctors or health care workers to provide or refer for MAID. Despite that fact, the colleges of physicians as well as nurses' associations have instituted requirements that their respective members participate in MAID in disregard of members' conscience rights, on pain of professional sanction and reprisal in some cases. This is Parliament's opportunity to bring uniformity and clarity to the issue of conscience rights, and was made for that reason.

I have two pragmatic reasons in addition to the reasons that were set forward before the subcommittee. First of all, tens of thousands of Canadians trust and rely daily on medical practitioners to perform their duties in an ethical and conscientious manner in the provision of service. The provincial colleges of physicians have ethical requirements for doctors, and they expect physicians to be governed by a strong sense of moral and ethical responsibility.

We say that this committee has to consider the ramifications of overriding a physician's conscience in one aspect of service and then expecting that same physician to act in a conscientious or ethical manner in all of these other service requirements.

We also say it's important for Parliament to recognize that what Carter was talking about was a balancing of rights. There is a right to die recognized in Carter, but there are also rights for medical practitioners. It's important not to lose sight of the forest for the trees. The people who under this current Bill C-14 will be implementing MAID are the people who will wake up tomorrow morning, look themselves in the eye, continue on with their daily business, and know that they performed their duties in an ethical and conscientious manner. The people who have availed themselves of MAID will be gone, but the medical practitioners will still be here.

In my respectful submission—I don't mean to be trite—is it a proper balancing, looking at somebody's life on the verge of expiring, weighed against the decades of medical practitioners who still, on a day-to-day basis, must act in a conscientious and ethical manner? Is it not disproportionate to focus solely, or almost exclusively, on the rights of patients as opposed to those who are tasked with implementing MAID?

We say it is. We say a proper balancing would never oblige an individual to participate in MAID. There have been lots of discussions about whether or not it's legal or constitutional to include a protection in Bill C-14 for conscience rights. We say it is.

First of all, it is clear that right now Bill C-14 is dictating how MAID can be implemented and who can implement it. It is making regulations. It is making laws, or it purports to make laws, with respect to how MAID is to be carried out in the province. If the province is the sole entity that can make laws with respect to MAID, then this legislation would be offside. It's clear that this is not the case. We say it's apparent that conscience rights can be protected.

I would direct your attention to the circumstances in this example, one out of a number that we've thought of. Of course, the general rule with respect to culpable homicide is that there's no killing. It's sort of similar to the general rule that if you are a Canadian individual or organization, you have to pay taxes, because federal taxes are the purview of Parliament. Charities are controlled by the provinces, under section 92 of the Constitution Act, 1867, and yet charitable organizations have to make application to the federal government to both obtain charitable status and continue it. The reason that's the case is that otherwise they would not be allowed to do what they are allowed to do, which is accept tax-exempt donations.

In summation, I'll say that there are other analogous circumstances, such as in the Civil Marriage Act, where there are enumerated protections for conscience rights. We say it would be a mistake not to codify the same in this legislation.

Thank you.