Evidence of meeting #13 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was medical.
A video is available from Parliament.
9:10 p.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much, Mr. Cameron.
We will now move to questions, and Mr. Cooper will start.
9:10 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Mr. Cameron, you stated that it was your opinion that Parliament has flexibility constitutionally to enact conscience rights protections. You cited some examples of where Parliament has enacted laws or regulations in other contexts, but perhaps you could elaborate a little bit on what powers Parliament has to enact conscience rights protections.
9:10 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
We say this is an unusual situation. It's important not to miss that what's happening here is the carving out of an exemption for culpable homicide. Because Parliament is carving out that exemption, we say Parliament can set the parameters with respect to who is instituting MAID and how it's being instituted.
We say the 15-day waiting period, for example, would be constitutional, because that is within the boundary of that exemption that's being carved out. We say it doesn't trench on the provincial powers. We say it's necessarily incidental for the exemption that's being carved out.
We know that the Supreme Court of Canada has given that mandate to Parliament. The expectation, when I read Carter, is that the court expects Bill C-14 to balance those rights, and that is what is conspicuously missing. We say there's nothing wrong with putting that protection in the Criminal Code power—namely, under the Criminal Code power in section 91 of the Constitution Act, 1867.
9:10 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Right.
I agree with you. Parliament would have ample room in terms of criminal law power to legislate in this area. The Supreme Court at paragraph 53 in Carter specifically said that the area of health care is an area of concurrent jurisdiction, in which both the federal and provincial governments can legislate. So I think it even allows greater flexibility in which to legislate.
Certainly Parliament does have the ability to legislate, but I guess then the question becomes how far Parliament can go in the way of legislating. A similar question was posed to a witness, Professor Pothier, earlier this evening. She seemed to suggest that Parliament could enact conscience protection legislation along the lines, for example, of section 3.1 of the Civil Marriage Act, but she then seemed to say that this would be about all that Parliament could do in the way of conscience protection legislation.
Could you perhaps elaborate on how far Parliament can go to protect conscience rights?
9:15 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
Without a reference to the Supreme Court of Canada, it's impossible to say entirely 100% for sure. I can't say. I feel as though I would be delving into the realm of speculation to say.
Suffice it to say, I think this bill can enact protections with respect to conscience rights. I think that under both the criminal power and the health power, Parliament has that jurisdiction. I also think the Supreme Court of Canada has sort of tipped its hand that it intends to be deferential with respect to this legislation.
That's my response.
9:15 p.m.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
I would simply note that if Parliament did not act, it would be left to the provinces, and that would create a patchwork of inconsistencies. Indeed, it could lead to a situation in which there would be no conscience protections anywhere, or at least in certain provinces. That would make Canada unique compared to every other jurisdiction that has some form of physician-assisted dying. In every other jurisdiction there is some form of conscience protection enacted. Canada would have a vacuum in that regard, and that obviously would be very concerning.
I don't know if you have anything further to elaborate, Mr. Cameron.
9:15 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I would say this, that Justice Dickson at paragraph 143 in the Edwards Books decision counselled the avoidance of inquiries into people's religious beliefs. From our perspective, this doesn't have to be made to be about religious beliefs. There are long-standing beliefs, thousands of years old, with respect to the killing of your patient, which were originally enshrined in the Hippocratic Oath, and the Nightingale Pledge, which is the nurses' version of the Hippocratic Oath. They've been in existence for centuries in various forms, and many, many physicians today—you heard the statistics, 70%—don't want any part of this. You don't erase centuries of conscience protections ingrained in the medical profession with the slash of a pen. They're there, and whether they're ethical or they're conscience or religion-based, or it's just a matter of someone saying, “I feel uncomfortable about it, and I don't want to participate”, people have the right not to do that under the charter. That's our position.
9:15 p.m.
Liberal
9:15 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Professor Downie, thank you for your presentation. I have a question outside the realm of what you presented on in terms of the 15-day requirement. Even though there is an exemption such that a physician can reduce the number of days, is it cruel and arbitrary that we, the legislation, or a physician can deem someone to be under enduring suffering and can then make them wait 15 clear days, which may in fact be 17 days? Could you discuss your feelings on that particular provision?
9:15 p.m.
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Sure. I think there are two problems with the 15-day limit. The first is the 15 days during which somebody is compelled to experience enduring and intolerable suffering in order to prove that their wishes are non-ambivalent in circumstances where it's very clear that they're not ambivalent. It's an attempt to protect against ambivalence, but the problem is it's not dealing with a situation in which ambivalence would be a real concern, and it's enforcing a waiting period on everybody when there is no concern about ambivalence.
The second problem with it is that the provision as drafted allows for flexibility only where the death or the loss of capacity is foreseen. It has to be imminent. The problem is, of course, that you can lose capacity unexpectedly. Somebody could have met every single condition. They have met all the criteria. They have met the procedural safeguards. They're waiting those 15 days; they lose capacity; and they're stranded. They will not get help.
I think it's cruel and it's over-inclusive in an attempt to capture something that is understandable, but it's the wrong tool to capture what they're trying to capture.
9:15 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
I know I haven't asked anyone this. Could you briefly discuss the interplay between section 7 and a breach of fundamental rights, and reasonable limits, and how the courts in the past have viewed breaches of fundamental justice and reasonable limits upon that?
9:15 p.m.
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
If I understand your question, I think maybe we could turn to the Carter decision and see it playing out there very clearly, which is that the court saw that there were limits on the rights, and then it looked to see whether that was in accordance with the principles of fundamental justice. It found that no, that was overbroad. Again, similarly to the 15-day...it's overbroad, and it captures far too many people. That would be a consideration with this bill, so you're running into that tension yet again.
I think we just need to look at Carter and the fact that Carter drew a circle and said that for people within that circle, you cannot prevent them from having access, and yet the people who get access under this bill are within that circle, so it's a violation of what Carter did in terms of its section 7 analysis.
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Mr. Cameron, I'd like to turn to you. Leaving aside medical assistance in dying, is there another medical procedure out there in which a physician has been coerced against their will or against their own conscience or beliefs that you're aware of?
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I think the answer to your question lies in the history of the medical profession.
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Let's not go back to the history of the medical profession. Can you answer based on today in Canada? What other medical procedures are you concerned about that would be a concern, where physicians are struggling with conscience?
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I don't know of an analogous situation where the consequence of the act of a physician is the intended death of the patient, so there's nothing analogous I can think of.
Physicians and nurses were trained and raised to care for patients and provide health care. I share the concern that another panellist mentioned tonight that killing a patient isn't consistent with the idea of health care that—
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
But again, Mr. Cameron, you're venturing off. In terms of the specific individual, there's no other case you can point to, I guess is the simple answer, where there is a concern about conscience rights in the medical profession.
My next question goes to the colleges of physicians across the country that are self-regulating in terms of ethics, as are the bars of the various provinces.
Why are you advocating for regulating the professions, which clearly isn't within the jurisdiction of the federal government?
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I'm not advocating for regulating professions, but I would note that every single month there are lawyers who are disbarred for malpractice and for improprieties.
It's clear from the study that was released today that whether it's intentional or accidental, the medical profession makes a lot of mistakes and kills a lot of the patients that it's supposed to be helping.
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
The medical profession, like the legal profession, gets to determine what is unethical.
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
Only so far, sir. Parliament decides what's criminal, and there are limits to what is in the purview of both the law societies as well as the medical professions. They have a limited mandate, whereas Parliament's mandate is much larger and broader.
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
Okay. In terms of conscience rights for institutions, can you point me to any Supreme Court decision that guaranteed conscience rights to a publicly funded institution?
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I can point you to the freedom of association under paragraph 2(d) of the charter, which is not just a right for individuals, but also a collective right. Collectives form around the notion of doing what they can do collectively, what they can do individually.
9:20 p.m.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
In this case.... Well, I don't know.
If you want to tell me what my answer is....
9:20 p.m.
Liberal
Chris Bittle Liberal St. Catharines, ON
I'm asking you, is there a Supreme Court case that points to that? You're dancing around the subject, but is there a Supreme Court case, yes or no?