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.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
I'd refer you to the Mounted Police Association case.
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
It's Mounted Police Association with respect to the associational rights of the collective.
Liberal
Chris Bittle Liberal St. Catharines, ON
It's a union case, so you can't point to a publicly funded institution.
Doesn't that lead to a slippery slope, that if we grant conscience rights to institutions in this one exemption, we're opening up the charter to issues of employment or access to a publicly funded institution for members of that particular religious group only? How can we limit those charter rights to your very narrow request?
Barrister and Solicitor, Justice Centre for Constitutional Freedoms
With respect, sir, I think you're blurring the issue. The issue is whether or not a group of individuals who have formed around a common creed can decide whether or not they're going to participate in MAID—that's the question. We say they can—that's the answer.
NDP
Murray Rankin NDP Victoria, BC
Professor Downie, I want to salute you, first of all, not only for being a professor of medicine and law, which is something, but also for your work with the provincial-territorial advisory group on physician-assisted dying. It's an enormous piece of work.
I was very disturbed by what you said. Essentially, I heard you say that the way it's drafted, proposed subsection 241.2(2) unjustifiably reduces access to medical assistance in dying. Then you gave the example of Kay Carter, whom you said would not be able to avail herself of this service. Then we had another witness today, who said that Ms. Rodriguez would likewise be unable to do so. People who have major physical disabilities, but who may live for a lot longer, are not protected in this bill at all. I think you indicated that it would be unconstitutional—I don't want to put words in your mouth, I want to hear them—for us to limit this protection to terminal patients or those reasonably approaching death, or for whom natural death is reasonably foreseeable. Is that accurate? Have I captured your conclusion right?
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes.
NDP
Murray Rankin NDP Victoria, BC
To think that after all this, the fact that Ms. Rodriguez wouldn't be able to get coverage under this law, a lot of Canadians would find very disturbing, I'm sure.
You talked about the “reasonably foreseeable” language, which I remember from tort law was about an event, a predictable thing, rather than of a temporal nature. Yet the government, in its so-called legislative backgrounder, talks about it as if it's about time.
Could you elaborate on that?
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes. I was baffled by it when I saw the provision. Then when I heard the government say that this was an established concept in law, I thought, I've heard “reasonably foreseeable”, but not in terms of temporal proximity. Of course, it can't be about predictability, because if you understand reasonable foreseeability as predictability, we are all qualified right now, because I know we will all die. Predictably, we're all going to die, so clearly they mean temporal proximity. Then you look for temporal proximity, meaning it's close enough, not too remote, then you go looking in tort law, and you find that that's not what it means. You go looking in the criminal law, and find that that's not what it means. In criminal law and tort law, it means this predictability piece.
It's either not what's established in law, i.e. their temporal proximity, or it is what's established in law, and then it's not their meaning.
NDP
Murray Rankin NDP Victoria, BC
It applies to everyone, because if it did it would apply to all of us, and so it's meaningless, right?
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes.
NDP
Murray Rankin NDP Victoria, BC
With your analogy to a small circle versus a large circle, you're saying that Bill C-14 covers a small circle. I don't want to put words in your mouth, but the Supreme Court intended a larger circle, and they simply didn't get it right in this law. Is that your submission?
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes, that's absolutely right. I think they misread, in part, what the factual circumstances in Carter were, and also, given some of the things that have been said in the past week, maybe deliberately drew the circle inside the circle of Carter and thought they could. I fundamentally don't think they can. The justification that's been given is this notion of dialogue and that there will be deference around the regulatory framework. What's really important to understand is that there will be deference around whether it is 15 days, or 13 days, or two doctors, the procedural safeguards, not the drawing of the circle. Because there's still an absolute ban around the circle, and that's where there isn't a back-and-forth, and you don't get to draw the circle smaller.
NDP
Murray Rankin NDP Victoria, BC
The only consequence, if you're right, is that people who are suffering will have to go back to the court to get the court to say again what they said in Carter.
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Exactly.
NDP
Murray Rankin NDP Victoria, BC
You made some very significant statements about the legislative background. You used the words “misrepresentation of data”, which is a very serious thing to say, yet I notice that you made six assertions after that, all of which have footnotes after them, so you didn't just make it up.
I want to give you the opportunity to talk about why you are concerned about that legislative background.
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
I can give examples of each of the elements.
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Okay. They state that in the Belgian law it was extended to “all minors”. That's not true. It was extended to mature minors; they must have the capacity of discernment, which is the equivalent concept to mature minors, which is what we have.
I'm really concerned about the use of the data when they're talking about what's going on in other jurisdictions and they want to persuade you to believe that there's reason to be concerned about the vulnerable, and therefore you can limit.... Look at endnote 39. It links to a series of websites in the media, not to the decades of empirical research done in Europe, in Oregon, and so on. That's fundamentally problematic.
On the advanced directives piece, I'll quote from it: “Advance directives generally do not provide reliable evidence of a person’s consent at the time that medical assistance...would be provided.” That's a reason for keeping advance requests out. That's a justification for limiting a charter right. It is a fundamental assumption of advance directives across the country that they do stand for what the person wanted and we respect them.
The final one, which is extraordinary—and a lot of us were startled by it—is that when you look at the list and the category of “Canadian academics and experts” in the bibliography that are cited, you see four people. One of them is one of the foremost opponents of assisted death in Canada, and the three others were experts for the crown in Carter. That's not—
Professor, Faculties of Law and Medicine, Dalhousie University, As an Individual
Yes, that lost the case. That's the basis of what you've been given, so that you're then turning and asking, “Is that reasonable grounds for us to feel comfortable?” Because you know it's limiting rights. The question is, have you been given reasonable grounds to say that you accept that you can support the claim that it's demonstrably justified in a free and democratic society? That's your document? No.
