Justice Committee on May 4th, 2016

[Colin Fraser, Liberal, West Nova, NS]

I would like to turn to the Evangelical Fellowship of Canada. I appreciated your submission and brief. With regard to judicial oversight, which you advocate as something you would support seeing in the bill, I am assuming that you are suggesting that should happen so that there would be some independent oversight ensuring that consent was valid.

[Julia Beazley]

There are a lot reasons that it's a good idea. The Supreme Court felt it was a good idea, so it put the system in place and it has been working fairly efficiently. As the defence lawyers were speaking, I was thinking that this would address many of their concerns, because then the final gatekeeper would not be the doctor or the nurse practitioner. They are not the ones making that final decision. It would be a judicial decision or one by some sort of oversight mechanism. As a result, there would be protection for patients, protection for people who are vulnerable, and also protection in that system for the medical practitioners themselves.

[Colin Fraser, Liberal, West Nova, NS]

With regard to Carter, I appreciate the point. Obviously, that's in the context of it coming to Parliament in order to put the safeguards in place. My follow-up then would be that in a situation where end-of-life issues result in a decision to pull the plug, for example, that doesn't require any judicial oversight and that's dealing with consent. So, what's the difference?

[Julia Beazley]

There's a big difference because we're talking about a Criminal Code exemption to culpable homicide or assisted suicide. To withdraw treatment, as you heard earlier from the last panel, we're talking about situations where medicine has exhausted its ability to heal, to comfort, to do all of those things. What you refer to is just the withdrawal of a treatment with consent. We're talking about an intentional act to hasten death. I don't think you can really compare the two.

[Colin Fraser, Liberal, West Nova, NS]

Even though it's dealing with a decision whether the consent was valid...of a judicial oversight?

[Julia Beazley]

Well, that's not the only point of a judicial oversight. One of the points would be consent, yes. There are a whole lot of other reasons why many people are suggesting that judicial oversight should continue, or some sort of prior review, whether it's judicial oversight or not.

[Colin Fraser, Liberal, West Nova, NS]

Thank you for your help.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you to all the witnesses for coming and for your patience.

There's only a little bit of time, so I'm going to jump right in and ask Mr. DelBigio the following. You said in answer to a question from Mr. Fraser that it would be problematic to attempt to correct the “reasonably foreseeable” criterion by adding a time limitation. I think you said that it might be contrary to Carter.

Could you elaborate?

[Greg DelBigio]

The Carter decision was concerned with restrictions. A time limit is almost inevitably going to be a restriction. Whether it is a month, a year, or something in-between, it is going to be arbitrary. I say simply that it's not necessary by Carter and perhaps contrary to Carter.

There would almost certainly—and I will tone that slightly down—be a significant risk of litigation if a time limit of that sort were introduced.

[Murray Rankin, NDP, Victoria, BC]

I want to say to you, Mr. Fowler, that you are the first witness who has brought to our attention, very helpfully, that the honest mistake could still be something that would lead to a prosecution for murder. That is very sobering, indeed, when you think of the consequences of that. You've given us a proposed amendment to it.

I'm going to throw something slightly different at you. I know you're the defence lawyer, but the question we had from the civil lawyers who advise the CMPA, the Canadian Medical Protective Association, looking at the same clause that you talked about, was that they ought to extend it to civil and disciplinary proceedings for practitioners, because of, I presume, wrongful death claims, where mens rea wouldn't be the standard. It would be a lower standard, and in fact it would be worse for the doctors. If anything could be worse than a charge of murder, they could also find themselves with huge damage claims, because that's, I think, equally relevant there. Do you agree?

[Richard Fowler]

It's outside of my area of expertise. Usually, when somebody is charged with murder, some of these other matters tend to become less significant. However, clearly, I appreciate from the perspective of the medical insurance association that the extent and scope of any form of liability for making an error in judgment around what are essentially very complex safeguards is, I think, a very legitimate concern, yes.

[Murray Rankin, NDP, Victoria, BC]

I wanted to say thank you to Mr. Bauslaugh for your very sobering testimony today.

I've skimmed through your book. It's very new but very disturbing. When you came here today and said that Sue Rodriguez and Kay Carter would not be helped by this bill, that's a staggering conclusion to think that people could go all the way to the Supreme Court for this relief and that this bill is not going to make what they requested possible.

[Dr. Gary Bauslaugh]

We're here today because of Sue Rodriguez. She set the climate in Canada for this whole issue to be explored, as well as some other people who came after her. I think it would be a terrible outcome if the legislation that results from all these years of effort would have excluded her consideration. A time limit does not work for somebody like Sue Rodriguez, because she could have lived on for years. So six months or a year would not be suitable.

[Murray Rankin, NDP, Victoria, BC]

That's the point you made about how this “reasonably foreseeable” language would add no assistance, I think you said, in 77% of the cases you looked at back to 1941, for people who wished to avail themselves of that.

Tell us a bit about any other of the cases that you haven't had time in your testimony to tell us about.

[Dr. Gary Bauslaugh]

I can briefly talk about a case that I find very compelling. The cases are listed chronologically in the book.

In 1994, in Stoney Creek, a couple named Cecil and Jean Brush had been happily married for 58 years. He turned 81 in 1994 and was extremely sick with many ailments and had lost his eyesight by this time. He was suffering early dementia, and he had been severely depressed for some time. They had a terrible time coping with life. They had had a great life before that. They had been happy and vital people, but they had just reached a point where life had no value to them, and it was a burden to them.

She tried to have both of them commit suicide by taking pills, and it failed, and they woke up in the hospital. He was taken to a nursing home. She took him out supposedly for lunch one day from the nursing home and took him to their home, and put blankets on the floor, and they both lay down on the blankets. She stabbed him in the stomach several times and then stabbed herself in the stomach several times, thinking she had to die as well if he was dying. They were discovered by their daughter in a pool of blood in their home.

Cecil died, she survived, and was then charged with manslaughter. The judge, a compassionate judge, suspended her sentence because she was obviously guilty. I think the example shows the terrible lengths people go to if they don't have legally sanctioned ways of doing this. She wrote a very compelling letter that's in my book about the situation.

[Murray Rankin, NDP, Victoria, BC]

Mr. Clemenger, I'm not sure if I understood this, but when you talked about the conscience protection, have you looked at the legality, the constitutionality, of our putting that in federal laws? We've been struggling to address your concern. Many, including the leading practitioner in the province of Quebec, say it's clearly and utterly provincial jurisdiction, and even if we wanted to, we couldn't do it in federal law. Do you have an opinion on that point?

[Bruce Clemenger]

We've talked to a number of constitutional lawyers, and they believe it is possible.

Again, it would be coercion. I gave a couple of simple examples, but the idea would be that it would make it a criminal offence to coerce someone to undertake a certain action that is deeply contrary to their moral or religious beliefs.

It's a reaffirmation of the freedom of paragraph 2(a) of the charter.

[Murray Rankin, NDP, Victoria, BC]

Is there anything in the bill requiring a doctor to provide this service?

[Bruce Clemenger]

As I said, it's in the context of the bill, as the justice minister and the health minister have said about making it a medically essential service. We already have the example of the College of Physicians and Surgeons of Ontario, which is requiring—

[Murray Rankin, NDP, Victoria, BC]

I don't where in the bill it requires it to be an essential service.

[Bruce Clemenger]

She said it in—

[Murray Rankin, NDP, Victoria, BC]

We're talking about the law. Is there anything in the bill you can point to?

[Bruce Clemenger]

I was referring to the “whereas” and then the broader context of what the regime the government is planning to set up in the context of Bill C-14. That's what gives us a concern.

Also, we have a live example of the College of Physicians and Surgeons of Ontario, which is right now requiring effective referral, which is deeply contrary to the religious conscience and beliefs of many doctors. They need protection.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your comments.

Mr. Hussen.