Justice Committee on May 4th, 2016

[Prof. Trudo Lemmens]

I would agree with that.

The best protection is indeed strict criteria, so I think the biggest concern that people would have with open criteria and situations where you could have a 16 or 17-year-old suffering from depression, which is not uncommon.... Having an 18-year-old myself, I know what the challenges are of dealing with an adolescent. So I think strict criteria that avoid our having the kinds of situation where families are confronted with an individual choice they have no say about, where they are worried about individual assessments by physicians, prior review with an additional vulnerability assessment, I think is, in the context of vulnerability lessons, not an unnecessary thing to propose....

If you look at the most liberal systems like those in Belgium and the Netherlands, Belgium introduced access for mature minors, but does require familial consent. In the parliamentary debates, people felt too uncomfortable not to have the family involved in the decision-making process. I would say that it's a difficult area to deal with. Obviously, there is something arbitrary about the cut-off age of 18, but at the same time sometimes we set a certain line and other cases could be dealt with through additional prior review from the vulnerability assessment judicial review. But I would say that familial involvement and narrow criteria already provide, in my view, some of the strongest safeguards and additional vulnerability assessment.

[The Chair, Liberal, Anthony Housefather]

Finally, Ms. Klenk, and that will be the last question.

[Maureen Klenk]

I think we have to remember that it's the whole package, to put it into context. By removing that, it doesn't mean that you throw everything else out. There are other criteria that a person does still need to go through, and that I, as a practitioner, need to think about. I'm also going to be in a therapeutic relationship with this person and will have thought about coercion and about all those other items that you brought up. That's part of the safeguard and part of being able to counsel and enter into it.

However, whether you're 18 or not, I think you have to ask yourself: does the person have a grievous and irremediable medical condition, and are they suffering?

At the end of the day, I would promote patient-directed care, so I'm going to take it up a little bit more than patient-centred care and move into the patient-directed care. If we focus on that, then can someone who is a mature minor direct their own care?

[The Chair, Liberal, Anthony Housefather]

I want to thank the members of the panel for their really excellent briefs. We will read them again afterwards, but there were really compelling presentations, so thank you so much.

We'll take a short pause and get the next panel up here.

[The Chair, Liberal, Anthony Housefather]

We're back in session. I'd like to welcome our next panel of witnesses, who have had to wait an awfully long time. On behalf of the committee, I want to express our very deep appreciation for your patience with us tonight as a result of the votes.

I'd like to introduce the members of the next panel. From the Evangelical Fellowship of Canada, we welcome Julia Beazley, the director of public policy, and Bruce Clemenger, the president. From the Canadian Council of Criminal Defence Lawyers, we welcome Greg DelBigio and Richard Fowler. Presenting as individual, we have Gary Bauslaugh, who is a freelance writer. Welcome.

We're going to start with the Evangelical Fellowship.

[Bruce Clemenger, President, Evangelical Fellowship of Canada]

We appreciate the opportunity to appear before you this evening.

The Evangelical Fellowship of Canada is a national association of evangelical Christians. We were intervenors in the Rodriguez and Carter cases and have appeared numerous times before parliamentary committees on related issues.

Our affiliates include over 40 denominations comprising 7,000 congregations. Pastors and church members regularly care for people in crisis and those who are nearing death. Some of our denominations have extended care facilities and hospices.

The issue before us is how we as a society respond to the suffering of others. We believe the appropriate response to suffering is care, comfort, and compassion, not the hastening of death. Our belief in and commitment to the sanctity of human life and our calling to care for vulnerable persons animate the care we provide.

It is on this basis that we oppose the decriminalization of assisted suicide and euthanasia, but as the government is proceeding with legislation, we are calling for protection of conscience and religious freedom, for the strictest possible safeguards in order to minimize harm and risk to vulnerable persons, to ensure that occurrences are rare, and to protect our society's commitment to the respect for life.

On the matter of freedom of conscience and religion, the minister, when she appeared on Monday, said that this legislation does not compel medical professionals to participate in MAID. While that is technically correct, the minister also said that MAID is now considered “medically necessary” treatment. This places conscientious-objecting persons and institutions at risk of coercion.

Actually, in looking at it today, someone pointed out to me that proposed subsection 227(4) creates an exemption to section 14, which appears to, at least, delete the caveat of “no person is entitled to”. That seems to create an entitlement “for”.

Our concern is that creating a right establishes a corresponding obligation. If you accept the premise that medical aid in dying is a right, you have an obligation to protect, we submit, the freedoms and rights of doctors and other medical professionals.

The College of Physicians and Surgeons of Ontario, as you've heard, has already decided that all doctors must make effective referrals regardless of conscientious objection. What will this government do to protect medical professionals from being coerced to participate in the killing of another? Even in times of war, conscientious objectors were exempted. Medical practitioners must have the right to refuse to participate in physician-hastened death, either directly or indirectly, for reasons of conscience or deeply held beliefs, including the right not to make a referral.

Also, there has been no commitment made to exempt objecting institutions, thus protecting their staff and the communities that provide care, which we feel is equally important. We recommend that protections be included by express statements in the preamble of the bill. We also strongly recommend that conscience protection be included in the legislation as a stand-alone provision in Bill C-14, or as an amendment to the Canada Health Act, or by creating a Criminal Code offence that prohibits coercion of patients, medical care providers, and institutions in relation to medically assisted dying.

Did you know that the Bank Act forbids a bank from coercing someone to obtain a product or service as a condition of receiving another service, or that it is an offence to coerce someone either to belong or to refuse to belong to an artistic group? We are talking about hastening the death of another in this context. How much more important is it to protect the conscience of medical professionals and institutions?

[Julia Beazley, Director, Public Policy, Evangelical Fellowship of Canada]

We are very concerned about the impact going down this road will have on suicide prevention efforts, on attitudes toward suicide, and on rates of suicide generally. In the long term, we believe this will impact the way Canadians understand suffering and the way they respond to it. We appreciate the statement in the preamble recognizing the lasting harm of suicide but feel the legislation needs to contain a stronger statement, acknowledging that suicide is a tragedy that hurts families and communities. We also ask that it be clearly stated in the preamble that the prevention of suicide remains a crucial public policy objective.

We would like to caution the committee against defining hastened death as health care. While this is not done explicitly in the bill, it is implied in the clauses in the preamble relating to the Canada Health Act and to the importance of a consistent national approach to health care. In nearly all public statements from the ministers it is clearly being framed as a form of health care or a medically essential service, as evidenced by the name “medical assistance in dying”.

First, we object to the notion that to deliberately hasten a person's death can be considered health care. Second, what the court allowed for and what the bill does is to create exemptions to Criminal Code prohibitions against culpable homicide and assisted suicide, which is solely federal jurisdiction and needs to remain there. To define this as health care is to relinquish that jurisdiction, and we urge caution on that point.

Further, if hastened death is defined as health care and accepted as such, it will become very difficult to deny access to anybody on any grounds. Such framing of the legislation sets it up for charter challenge.

We were relieved that Bill C-14 does not allow access to hastened death for individuals with mental illness or whose suffering is primarily psychological, but we note with concern that the preamble suggests that it is not so much a firm “no” as it is a “not yet”. We believe the risks to vulnerable Canadians are far too high to allow this. It should be an unequivocal “no”. To this end, in proposed paragraph 241.2(2)(c), we recommend that the words “or psychological” be deleted, so that the provision describes a condition that causes “enduring physical suffering that is intolerable” to the individual.

On the subject of reasonable foreseeability, we were advised by a lawyer that this concept comes from civil and criminal negligence laws. In the context of hastened death, a vague legal concept is not an appropriate criterion. Since under Bill C-14 it is doctors and nurse practitioners who will be the gatekeepers of eligibility, the criterion must be one that is medically understood and assessed. We suggest that “reasonably foreseeable” be replaced with either a specific time frame, such as six months, as in the state of Oregon, or “at the end of life”, as in Quebec. While there is still imprecision and guesswork in either of these concepts, they at least reflect the kind of assessment and judgment that medical professionals are accustomed to making, and therefore are much more appropriate.

We are very concerned that patients will be vulnerable to choosing hastened death if quality palliative care is not available to them as an option, so we affirm wholeheartedly the many calls you have heard for the importance of improved access. As Dr. Branigan said yesterday, we must make the right of access to palliative care as robust as the right of access to assisted death.

We recommend that proposed subsection 241.2(3) be amended to include a requirement that the medical or nurse practitioner ensure that the patient has had a palliative care or other professional consultation to ensure they have been fully informed about the range of available treatments and supports that could ease their suffering. We also affirm the recommendation of the Canadian Society of Palliative Care Physicians that the preamble include a commitment to the establishment of a national palliative care secretariat.

As an additional safeguard, Bill C-14 should require an independent prior review of all cases of hastened death. One way to do this, as you have heard, would be to extend the current requirement for judicial oversight as established by the court when the deadline was extended.

You have heard testimony about the efficiency of the consent and capacity boards in certain provinces. The key for us is this prior review of each case by more than just the two assessing physicians or nurse practitioners. Whether it is by extension of judicial oversight or some other mechanism, we strongly recommend that a straightforward, efficient system can and should be developed for independent prior review of all cases.

[Bruce Clemenger]

Last, on the issue of protection and promotion of life, the Supreme Court recognized the sanctity of human life as a fundamental value of Canadian society in both the Rodriguez and Carter decisions. This underlying principle is what animates our society's commitment to universal medical care and to our social welfare system, etc. The Carter decision was a balancing of the autonomy and dignity of a person with a grievous and irremediable condition seeking death, and society's commitment to the sanctity of human life and care for vulnerable persons. Carter was not a “floor”; it was a delicate balance. In Rodriguez, the court concluded that allowing assisted suicide would undermine society's commitment to respecting life and that risks to vulnerable persons were too great. In Carter, the court concluded that limited exceptions to the blanket prohibition, while inherently risky for vulnerable persons, could be balanced with the respect for life and not compromise it. To move beyond Carter exceptions would be to undermine the respect for life and increase the risk of wrongful death.

Given the centrality of the sanctity of human life in the court's deliberations, and to Canadian society, we feel a stronger statement needs to be made to reassert this objective. We suggest that the following wording from the Carter decision be added to the first clause of the preamble ahead of the clause dealing with human autonomy: “Whereas the respect for life is one of our most fundamental societal values, and section 7 of the Charter is rooted in a profound respect for the value of human life”. That's a quote from the Carter decision.

The Carter balance is premised on the ability to establish stringent safeguards for something that the court recognizes is inherently risky. The basic difference between the Rodriguez and Carter decisions was whether the safeguards could be put in place to eliminate the risk of wrongful death. The court heard conflicting evidence about this. Parliament is better suited to assess risk, to establish the acceptable threshold, and determine whether the safeguards you establish will be effective.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's much appreciated.

We're going to move to the Canadian Council of Criminal Defence Lawyers. Gentlemen, the floor is yours.

[Greg DelBigio, Canadian Council of Criminal Defence Lawyers]

Thank you very much.

The CCCDL was formed in 1992. It has executive representation coast to coast to coast. We are very pleased to have been invited to be here to assist this committee in respect of this important legislative proposal.

Mr. Fowler and I will both be presenting. We are both practising lawyers in Vancouver. I'll make preliminary remarks, and Mr. Fowler will follow. We'll address legal and constitutional issues rather than issues that relate to beliefs and policy.

The Supreme Court of Canada decision in Carter began what is sometimes described in the law as a dialogue between the courts and Parliament. Now, to be constitutional, Bill C-14 must conform to what Carter addressed. Carter defined minimum requirements. Future litigation, I would urge, is to be avoided. It's expensive, it's time-consuming, and it is unfair to those who might avail themselves of this legislation.

The Supreme Court of Canada ruled, and that presents Parliament with options. Option number one is to do nothing. Of course, then, if nothing is done, the legislation will fall, and then there's a legislative void. Option number two is to enact law in accordance with Carter. Option number three is to enact a law that goes beyond what Carter says and what Carter addressed, for example, mature minors. It's my position that it is an example of an issue that is beyond Carter. It doesn't mean that it cannot be included, constitutionally or lawfully included, but it's not necessary to include.

The language that you choose can suffer from legal defects in one of two ways. One is over-breadth, as was addressed in Carter, and that is if the law captures more than is necessary to achieve constitutional objectives. A second way in which language can become legally defective or constitutionally defective is if it is vague. I suggest that, as you're contemplating language to address any of these provisions, you ask yourselves if there a common meaning. Is there a usual meaning? We heard discussion earlier that there may be an agreed-upon meaning within certain medical spheres. Ultimately, though, the meaning of a law is going to be up to a court, and it has to be sufficiently precise that it lends itself to interpretation by the courts.

The issue in Carter was whether it a crime to assist another in ending his or her life. The language of Carter, the constitutional language that resulted in the court striking the legislation, was based upon autonomy, dignity, and the need to protect the vulnerable. The conclusion was that “the prohibition on physician-assisted dying is void insofar as it deprives a competent adult of such assistance where” they give clear consent and have “a grievous and irremediable medical condition”. It is our position that the inclusion of the language of “natural death has become reasonably foreseeable” was not contemplated by Carter. It is a restriction, and, again, Carter addressed restrictions. The reason that the legislation fell is because the restrictions were inconsistent with the autonomy. I suggest to you that it is not necessary to include that limiting language.

More importantly, there are two further concerns. The inclusion of that language might give rise to challenges based upon issues of vagueness. What does it mean? Is there an agreed-upon meaning? Can that meaning be properly understood? Because it is a limitation, it might well invite further litigation, and that, I suggest, is to be avoided.

[Richard Fowler, Canadian Council of Criminal Defence Lawyers]

Thank you for this opportunity.

As this committee appreciates, from hearing the many presentations, medical assistance in dying is and will likely remain a subject that deeply divides people, based on ethical, moral, and religious beliefs. It is because of this that those medical and nurse practitioners who choose to provide medical assistance in dying—and I emphasize the word “choose”, because it's their choice—will, not surprisingly, find their actions carefully scrutinized to ensure compliance with the law. I wish to briefly explain how the law, as presently drafted, fails to protect medical and nurse practitioners who, acting in good faith, make mistakes in providing medical assistance in dying. In other words, what could happen to a doctor or nurse who fails to appropriately apply all the safeguards? Bill C-14 essentially sets out an exemption for what would otherwise be a culpable homicide—and that has to be emphasized—more specifically, first degree murder, an illegal act intended to cause death, which did cause death, and was planned and deliberate. Proposed subsection 227(1) of the act provides that a medical or nurse practitioner does not commit a culpable homicide if they provide medical assistance in dying in accordance with proposed section 241.2 of the Criminal Code.

In other words, failing to comply with all of the safeguards and other provisions in proposed section 241.2 would, potentially, leave a doctor or nurse liable to being prosecuted for a culpable homicide. The only logical culpable homicide would be first degree murder, which as you all know, has a minimum life sentence and minimum parole ineligibility of 25 years. So, that's what they have hanging over their heads, as it stands at the moment, with one exception, which I'll come to in a moment, if they get it wrong in good faith.

You have all seen and been referred to the eligibility requirements and safeguards. They are rightly stringent, but they also include matters over which different people, different doctors and nurses, might disagree, particularly, for example, on questions of whether death is reasonably foreseeable. You heard, I think, earlier today a doctor talk about the fact that foreseeability of a death is something that doctors can disagree about. It is because the safeguards are so stringent that it is easy to see how a doctor or nurse might make an honest error.

For example, a request for medical assistance in dying must be signed and dated before two independent witnesses. Proposed subsection 241.2(5) defines who is or is not independent. For example, a person is not independent if they are a beneficiary under the will or a recipient in any other way of financial or other material benefit resulting from the person's death. It is the doctor's or nurse practitioner's responsibility to make the evaluation of independence. What steps must they take? What degree of inquiry must they make to fulfill this requirement? Do they need to go looking for the will? Do they need to speak to the person who is seeking to die? What level of inquiry is necessary to determine independence? If it later turns out that one or both of the witnesses were not independent, the only defence available to the doctor or nurse would be that their mistake was reasonable. Proposed subsection 227(3) of the act provides a defence if a person makes a reasonable mistake in respect of any fact that is an element of the exemption. In other words “reasonable” means by some objective standard, standards that we don't yet know. You've heard that from other people, because this legislation hasn't come into force. A doctor or nurse who had made a mistake, who acted unreasonably but honestly, in that they believed what they were doing was correct, would not be able to avail themselves of that defence in proposed subsection 227(3). It's what we call in law the difference between a reasonable mistake and an honest mistake. One is objective and one is subjective. A person who makes an honest mistake can still be liable to be prosecuted for murder. They act in good faith but they make an honest mistake.

It is our submission that limiting the defence in proposed subsection 227(3) to only reasonable mistakes rather than honest mistakes—a distinction that is very meaningful in the criminal law—is wrong and potentially unconstitutional, particularly with regard to any prosecution for murder, because, as I'm sure many people here will appreciate, you can only be convicted of murder if you have the appropriate subjective state of mind. It's not measured by any objective standard. However, this exemption is measured entirely by objective standards.

It is our submission that proposed subsection 227(3) should be amended to read:

For greater certainty, the exemption set out in subsection (1) or (2) applies even if the person invoking it has an honest but mistaken belief about any fact that is an element of the exemption.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much. It's much appreciated.

We'll now move on to Mr. Bauslaugh.

[Dr. Gary Bauslaugh, Free Lance Writer, As an Individual]

Thank you, Mr. Chair and members, for having me speak to you today.

I'm going to speak about an issue that could potentially affect the lives of thousands of Canadians. I'll be speaking specifically about the reasonably foreseeable clause and taking the position that was mentioned by colleagues here, that it's not necessary and is problematic.

My hope and the hope of many other Canadians is that the new legislation will prevent situations like that of Sue Rodriguez, who in 1993 was refused permission to get assistance in dying even though she was facing a situation she could not bear to live with, the prospect of long-term and almost total paralysis. Once paralysed she would be unable to do anything to end her own life, which of course would have been perfectly legal. Suicide is legal in Canada, of course, but she was legally prohibited from getting assistance with this legal act.

She did eventually get help from an unknown sympathetic doctor who risked his or her own freedom to save Rodriguez from the grim fate the law said she just had to endure. This is not good enough for a civilized country. Many of us thought that Bill C-14 would help people like Sue Rodriguez and others who find themselves, to use the Supreme Court terminology, with a “grievous and irremediable medical condition”, or to put it in other words, we hoped that the new legislation would be the solution for people in a condition of unrelenting, inescapable misery.

Unfortunately, Bill C-14 would not have helped Sue Rodriguez. This is because of proposed paragraph 242.2(2)(d), which specifies that in order to be eligible for medical assistance in dying, natural death must have become “reasonably foreseeable”. Presumably whatever this means, it must mean something to do with death being imminent. Death was not imminent for Sue Rodriguez. She might have gone on living for years trapped in her paralyzed state.

A similar conclusion about the bill was arrived at by the family of Kay Carter, who was a central figure in the B.C. Supreme Court case that led to the unanimous ruling of the Supreme Court of Canada to strike down our assisted suicide law. Kay Carter was not about to die naturally when she went to Switzerland to get aid in dying, yet her case was at the heart of the decision of the courts. Surely now denying assistance in dying to people like Kay Carter would be a violation of the spirit of the decision of the courts.

Of course, there would be other consequences of the reasonably foreseeable clause. Some people would be forced to go on living in a state of grievous and irremediable suffering. Those with money would simply go to Switzerland. Those without money would simply be out of luck. Some of the unlucky ones would choose very grizzly means of dying, such as shooting themselves, jumping off a high place, or starving themselves. Some attempts at suicide, such as taking an overdose of some drug, may fail, possibly leaving people in worse shape than before.

We can anticipate new charter challenges on this reasonably foreseeable clause if the bill stays as written. But if Rodriguez and Carter would not have been helped by Bill C-14, I began to wonder who would be.

My recent book, The Right to Die, catalogues all the major assisted death cases in Canada since 1941. There were 35 for which a reasonable assessment could be made. Most of the individuals involved in those cases, like Sue Rodriguez and Kay Carter, would not have been helped by Bill C-14. Of the 35 cases, 27 or 77% would not have been helped by Bill C-14. Of those 27, by far the largest number, 19, would likely be excluded by the reasonably foreseeable clause. This is shown in the table that I handed out earlier, where cases are all listed with an assessment of how each might or might not have been affected by the new law.

Thus we have a bill that does not help most of the people who need such help. The main reason is the reasonably foreseeable clause, as judged by my analysis of real Canadian cases. It does not help those who actually need help most. Why do I say that? If a person is about to die anyway, helping them along can indeed be an act of kindness, but with death imminent anyway, their relief from suffering is limited to the short period of time left. It is surely an even greater kindness to provide wished-for assistance in dying to those with grievous and irremediable suffering that might go on for years.

There are other issues one could take up with Bill C-14, for example, the matters of mature minors and mental illness, which have been talked about a lot today. However, these are rare. No examples came up in my survey of Canadian cases. Moreover, the issue of advance directives is an important one. It came up four times out of 35 cases in my analysis. It is a complex issue, and I don't argue with the bill's treading cautiously here.

The reasonably foreseeable clause, however, is a very big problem. It seriously limits the good we can do with this legislation. The bill is about granting mercy to the suffering. Is there any good reason why such mercy should be a rationed commodity? Why should our compassion be limited to those are on the verge of dying? All of those—not just those who are about to die but all of those—in a condition of grievous and irremediable suffering, in a state of misery that cannot be fixed, deserve to have their wishes respected. All of them should have access to assistance in dying.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Now we're going to move to questions. First up is Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you to the witnesses for taking your valuable time to be with us today.

As I'm sure you're aware, we just had our first vote on Bill C-14. From your comments, I would assume that everybody would be voting against it. Maybe, maybe not, but I don't see anybody who has expressed total satisfaction.

I'm going to assume that if there is support, it's conditional upon amendments. It took Quebec six years and three premiers to pass their legislation, but we're going to do this within just weeks. I'm concerned about the rush-rush, and I wish we had more time to do this properly.

I believe it was Mr. Clemenger who made a comment about the importance of conscience protection. Bill C-14, as we've heard from the minister, does not compel or require a physician, a medical practitioner, a nurse practitioner, or a pharmacist, to participate in assisted suicide against their will. They're not compelled to do so. Yet there are hints that it would be the college of physicians and surgeons within each province that would determine whether a person were required to have an effective referral or not, which some physicians would find objectionable.

I met with an internist, who is now retired but was a doctor who practised medicine in British Columbia, who gave me a long list of examples in which there had been error in the continual care of a patient—people who were misdiagnosed and not treated properly and who ended up dying because of the lack of proper care. I asked, “Is this human error?”, and he said no, it was not. It was negligence in each of the cases that he gave to me. He said, “I'm not here to talk about conscience or the morality of this, just the practical way of dealing with it.”

There are problems in the regime being proposed, but I want to focus on conscience protection. The Canadian Medical Association said that 70% of physicians in Canada do not want to participate or refer in assisted dying. The other 30%, or 23,000 physicians, would be adequate to provide access. Why do you believe there's a push to the effect that the 70% are not protected—not compelled or required, but not protected...? Why is it so important to have conscience protection included in Bill C-14, or should Bill C-14 be amended at a future date?

[Bruce Clemenger]

We believe it needs to be amended now, before it is passed, to make clear protection of conscience for both doctors and medical personnel, and also institutions that provide extended care on whose premises someone may request assisted death, should a law pass.

Again, as I said in my comments, the minister did clarify that nothing in the bill says the doctor will be obliged to. However, you look at the “whereas” statements, it's clear that they're creating a regime around Bill C-14 that will deem medically assisted death as medically necessary. Once you create that paradigm, then, in a sense, you're taking what I don't think Carter established: a right to access. It was an exemption from the application of the Criminal Code. If you begin interpreting and framing it as a right to access, then there's an obligation to provide.

The clear example would be the College of Physicians and Surgeons of Ontario, which already requires an effective referral under the current regime while the bill is being suspended for the next four months.

We think it needs to be placed. We think there needs to be a statement in the “whereas” section, clarifying that no one will be compelled to participate contrary to their conscience or beliefs. We think there could be—and you've heard this before—a parallel paragraph inserted in Bill C-14 along the lines of section 3.1 in the Civil Marriage Act to protect it. Also, there have been some proposals—and I know they've been submitted to this committee—that clarify and define Criminal Code provisions against coercion.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Regarding the importance of avoiding vague language, originally the Supreme Court used the wording of “assisted suicide” and “voluntary euthanasia”, but they also used the language of “physician-assisted death”. The special committee changed that definition to “medical aid in dying”. In both of those, that could apply to palliative care. You're using the term “hastened death” or “assisted suicide” to clearly reflect what we're talking about. Would you agree that it's important to avoid vague language?

[Julia Beazley]

I would. We've consistently used the language of “euthanasia” and “assisted suicide”, because that is what we're talking about, and we think it's important that people understand what we're talking about.

I started using the language of “physician-hastened death” in response to and out of great respect for testimony that was heard by the special joint committee from different palliative care organizations that spoke of the fact that they assist people in dying, but they never hasten someone's death deliberately.

The palliative care community requested that we use the right language. When we're talking about euthanasia and assisted suicide, we refer to “physician-hastened death”. They also said that it's so important to them that the two be kept separate, because hastening someone's death is not part of what they do in palliative care. We've been using that language to try to respect that, and we're concerned that the language used in the bill does not respect that distinction.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, everybody, for your attendance and thoughtful presentations. They are very much appreciated.

The Carter decision that we're responding to with a legislative framework was rendered in February 2015, so I can't let Mr. Warawa's comment go unchecked. Obviously, we wish we had more time, but we are under a time constraint given by the Supreme Court of Canada. Obviously nothing was before Parliament between February 2015 and the election.

Mr. Bauslaugh, obviously you do not agree with the term “reasonably foreseeable” in the bill. Are you just saying that it should be eliminated entirely, or are you saying it should be replaced somehow with some other language?

[Dr. Gary Bauslaugh]

There's no reference to that in the Carter decision. It was added at the end of this bill, and I would take it out of the final clause.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

To the Canadian Council for Defence Lawyers, again on “reasonably foreseeable” you talk about vagueness and that term being difficult to understand, especially in the criminal law context. If a time limit were placed in there, would that make things a little more certain, from your perspective with regard to vagueness?

[Greg DelBigio]

The time limit will eliminate vagueness, but it is a question about whether or not our time limit otherwise is problematic. If it were to be specified that it's one month or two years, certainly there would be no uncertainty about that time limit, but it is nonetheless limiting and perhaps contrary to the Carter decision.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the idea that rather than using the terminology “reasonable but mistaken belief”, it should be “honest but mistaken belief”, making it subjective rather than objective, can you give some examples elsewhere in the Criminal Code where the terminology “honest but mistaken belief” is used?

[Richard Fowler]

It arises a lot in common law and it has arisen over the years with consent in sexual offences. There's a case called Pappajohn, which permitted a defence to an allegation of sexual assault if a person had an honest but mistaken belief in consent. Legislation dealt with that and has significantly altered that framework.

The difference between sexual assault and murder is that murder has a mens rea requirement that is entirely subjective. It's one of the very few criminal offences that requires the highest level of mens rea, which is a subjective fault. In other words, you know what you're doing at the time is wrong.

With this legislation, as drafted, if somebody makes an honest mistake, they could still fall outside of the exemption. The exemption, we have to remember, as I said at the beginning of my remarks, is to what is otherwise in all other circumstances the crime of murder. That's the problem.