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.