Justice Committee on May 5th, 2016

[Graydon Nicholas]

With the greatest respect, if you look at the preamble of the Charter of Rights and find out how the courts have used those words in the opening comments, you'll find that it's a nice statement, a flowery statement, but in terms of effect, it doesn't have much, in the actual interpretation of a particular right or a particular section that's being considered.

That's all I'm saying, and I'm not saying anything new. If you talk to litigators, people who defend people in criminal processes every day, they'll tell you that as well. That does not relieve Canada, however, of its obligations under these two instruments.

Canada can't go to another country and say, “you're a terrible government; you're infringing on the rights of your people, which are human rights that the United Nations recognizes”, and then all of a sudden Parliament says, you don't have the right to freedom of conscience. What's that going to do?

[Colin Fraser, Liberal, West Nova, NS]

You would agree with me, though, that this is an amendment to the Criminal Code and that nothing in here compels any medical practitioner or nurse practitioner to carry out something that is against their conscience.

[Graydon Nicholas]

The way it's open-ended now, if you look at those provisions under this Bill C-14, and if you look at the offences that are created because of this, if you don't notice, if you don't do that, you're subject to a criminal charge, and then of course when you're subject to a criminal charge, you have a right to defend yourself.

[Colin Fraser, Liberal, West Nova, NS]

Where in here does it compel anybody to do it? It's a criminal exemption. Where does it compel?

[Graydon Nicholas]

Just look at the offences you've created under this bill. I'm not going to go into a debate. There are offences created under this legislation. For example, proposed section 241.3 is one that is an offence because you're creating a hybrid offence. It could be an indictable offence or it could be a summary conviction offence, and then of course the prosecutors will determine which category under a particular circumstance.... Whenever you have an offence created by legislation....

[Colin Fraser, Liberal, West Nova, NS]

Sir, with great respect, I understand there are offences in here, but it has nothing to do with compelling a medical practitioner. That's about failure to comply with safeguards. That's not saying somebody has to do it. You'd agree with that at least.

[Graydon Nicholas]

Look at the section under what you're contemplating as regulations, proposed subsection 241.31(4). If there is a regulatory scheme that's going to be set up, or whatever this is going to look like, if you don't refer a patient to somebody else, or you don't even want to do that, what's the licensing body in each province going to do?

[Colin Fraser, Liberal, West Nova, NS]

I'll leave it there.

I'll move to Mr. Schuklenk if I can.

Thank you for being here and for your presentation. You talked about the Netherlands and Belgium, and I'd like to just reference that in each of those jurisdictions there's a difference with regard to a waiting period. In Belgium there's a waiting period for a month if death is not imminent, and in the Netherlands there is no waiting period, as I understand it. Is there any difference, from your point of view, with regard to psychiatric illness, in those jurisdictions where there's a waiting period or there's not a waiting period?

[Dr. Udo Schuklenk]

Do I think a waiting period is a reasonable thing, like the four-week waiting period in Belgium, for instance? I find it very reasonable. I'm not a lawyer, obviously, but it seems reasonable to me that if somebody is not imminently dying, there's no reason that one should not want to be really certain that this wish is stable over time.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much.

[The Chair, Liberal, Anthony Housefather]

You have one small question left, Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Sure.

Mr. Arvay, thank you for your presentation. Do you believe that simply striking out proposed paragraph 241.2(2)(d) relating to “reasonably foreseeable” make the definition of “grievous and irremediable” in this law charter-compliant?

[Joseph Arvay]

It would certainly improve it substantially, but in order to ensure its constitutionality, I would remove the entire definition, because it undermines the clear definition, the clear declaration in the Carter decision. The reference to “incurable” is problematic. The reference to the condition being aggravating is problematic. Obviously the clause that troubles me the very most is the reasonable foreseeability one, but if you really want to ensure that the legislation will withstand constitutional scrutiny, I would remove the whole definition.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

If the panel agrees, I just have one very short question for Mr. Arvay.

Mr. Arvay, thank you very much for your testimony today. It was helpful. I have one question, and it's related to an issue Mr. Rankin brought up and an example you provided. It's a bit of a different question, because I understand very clearly your belief that the drafting as it is now is not charter-compliant. There have been many witnesses at this point who have brought up using self-starvation and self-dehydration so somebody would then stumble into the definition as a result of their own purposeful actions. Whether we agree to drop all of these definitions and go back to the original Supreme Court one, or we stick with the current one—and I understand you think it's not charter-compliant—would it be constitutional for us to amend the bill so that some of these purposeful actions would not allow them to have medically assisted dying because of their decision to starve, or become dehydrated, or do anything else to demean themselves and cause them to stumble into this state? Would that be constitutional?

[Joseph Arvay]

Absolutely not.

[The Chair, Liberal, Anthony Housefather]

Okay.

I want to thank the panel very much for its testimony.

We're going to take a brief recess so we can get the next panel up.

[The Chair, Liberal, Anthony Housefather]

Welcome back, ladies and gentlemen.

I want to welcome our next panel of witnesses. It's a great pleasure to have all of you here with us. On video conference we have Dr. Harvey Max Chochinov, who is a professor of psychiatry at the University of Manitoba.

Dr. Chochinov, welcome.

[Dr. Harvey Chochinov, Professor of Psychiatry, University of Manitoba, As an Individual]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We have Jennifer Gibson, who is appearing as an individual and who is director and Sun Life Financial chair in bioethics at the University of Toronto's Joint Centre for Bioethics.

Welcome.

We have Mr. Josh Paterson, who is the executive director of the B.C. Civil Liberties Organization.

Welcome.

Since I didn't have a chance to talk to Dr. Chochinov, as he is on video conference, let me say that the way it will work, sir, is that we have eight-minute statements by each member of the panel. We would very much appreciate your sticking to the bill itself and your proposed amendments to the bill.

Afterwards there will be questions from members of the committee for each of you. I look forward to all of your testimony.

We always start with the witness who is on video conference, so we're going to start with Dr. Chochinov.

[Dr. Harvey Chochinov]

Honourable members of Parliament, my name is Harvey Max Chochinov. I hold the academic rank of distinguished professor of psychiatry at the University of Manitoba. I direct the Manitoba Palliative Care Research Unit, and I hold the only Canada research chair in palliative care. I've spent the entirety of my career working and conducting research in palliative end-of-life care. I'm also the former chair of the external panel on options for a legislative response to Carter v. Canada.

It is my privilege today to share some thoughts on Bill C-14 focusing on possible amendments for your consideration. My submission, which you've received, outlines these in more detail and also includes my rationale for why the current limitations described in the bill, including limiting access to patients whose death is reasonably foreseeable and not including provisions for mental illness, advance directives, and minors, are eminently justifiable and prudent.

The amendments I've put before you for your consideration include the following.

Number one, the government should consider an amendment stipulating that medically hastened death will take the form of assisted suicide, so long as patients are able to take lethal medication on their own. Euthanasia would be reserved for instances in which patients are no longer able to ingest lethal medication independently.

International experience reveals that euthanasia and assisted suicide are vastly different in terms of their uptake and lethality. In the jurisdictions that offer only physician-assisted suicide, the latter accounts for about 0.3% of all deaths. In jurisdictions that offer euthanasia, that form of death accounts for 3% to 4% of all deaths.

Extrapolating these figures to Canada and anticipating approximately 260,000 deaths per year, a regime offering physician-assisted suicide exclusively would expect about 800 to 1,000 of these deaths annually. On the other hand, a regime dominated by euthanasia could expect between 8,000 and 10,000 of these deaths annually.

According to experts appearing before the external panel, this vast difference is largely accounted for by ambivalence. Ambivalence is an important dynamic in considering a hastened death. While assisted suicide offers the possibility of changing one's mind—30% to 40% of patients in Oregon who receive a prescription never in fact use it—euthanasia dramatically reduces that possibility, once it has been scheduled and expectations are set for a specific time and place.

The data is clear. This will ensure that thousands of people each year who are ambivalent about an assisted death will not feel pressured by circumstances to proceed before they are ready to die.

Number two, the government should consider an amendment requiring that all patients obtaining medically hastened death should first be provided with a palliative care consultation. This would be over and above the duties of the two physicians described in the current bill and would be critical, so long as the bill limits access to patients whose natural death is reasonably foreseeable and who are in an advanced stage of irreversible decline in capacities.

The palliative consultants would not be in a decision-making role; rather, their role would be to identify all physical, psychosocial, existential, and spiritual sources of distress underlying the request to die; to ensure that patients are fully informed of all options that could be initiated on their behalf; and finally, to document their findings so that prospectively collected, anonymized information could be entered into a national database providing a detailed and objective basis for Parliament's five-year review of Bill C-14.

Number three, the government should consider an amendment requiring judicial oversight and approval for all medically hastened deaths. Judicial oversight would ensure a precedent-based, consistent, and clearly articulated set of benchmarks regarding when eligibility criteria have been met.

Judicial oversight would insulate health care institutions and professions from any perceived or real hazards associated with medically hastened death and would likely increase access, given the increase in number of health care professionals who would be prepared to engage with patients requesting medically hastened death. Oversight would demonstrate profound leadership, indicating that while Canada has made medically hastened death legal, our government does not yet know how this fits into our current system of health care.

Number four, in the most profound way possible, judicial oversight would ensure a commitment to transparency and objective evaluation of all factors, be they medical, emotional, psychosocial, financial, or environmental, that might underpin a request for medically hastened death.

In conclusion, I believe that the limitations and safeguards currently included in Bill C-14, together with these suggested amendments, would see Canada's approach to medically hastened death marked by integrity, transparency, and wisdom. Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Mr. Paterson.

[Josh Paterson, Executive Director, British Columbia Civil Liberties Association]

Thank you very much.

I'm pleased to be here today. I just want to say that although I'm not addressing all of our concerns today, the B.C. Civil Liberties Association continues to stand by our previous submissions to the parliamentary committee that went before.

Today my focus is simply on making the bill Carter-compliant. Bill C-14, in our view, must be amended in order to ensure compliance with the Carter decision and with the Charter of Rights and Freedoms. I have to say we were shocked when we first saw this bill and we learned that not only did it ignore many of the core recommendations of the parliamentary committee, but it actually cut out part of the heart of the victory that our organization had won in Carter.

In our view, this bill forgets what the Carter case was about. This case wasn't just about helping people with terminal illnesses to have a dignified death of their choosing; it was equally about ensuring that people who are trapped in unimaginable suffering from non-terminal illnesses have the right to escape a lifetime of indefinite suffering. Both of these kinds of people were before the court, and importantly, our organization was granted public interest standing to argue this case as an institution, in respect of various kinds of patients. The ruling was not limited to terminal cases, as we know from the mouth of the Supreme Court itself in January. It did not limit the decision to terminal people or to people who were foreseen to die.

The government says, well, this restriction isn't a restriction to those who are terminal. We say that the effect is the same, that under this bill, someone needs to be dying in order to qualify. The court itself has said that this is wrong.

We won that victory after years of gathering evidence, of tireless work, of fighting a federal government that opposed the realization of this right tooth and nail. We systematically were able to beat each of those arguments that were mustered by the government over multiple years. We knew, in winning, that this would make a real difference for people who would otherwise suffer intolerable and terrible deaths. We knew it would make a difference for people who were suffering unimaginably from grievous and irremediable illnesses in life, and now we see this victory being hollowed out, being taken right out of the bill for half of those people.

In order to remedy this, we support the amendment that was referred to by Professor Downie in her remarks yesterday. We take the position that prohibiting patients whose deaths are not reasonably foreseeable from having the choice of medical assistance in dying violates the charter, and that the entire section referring to the definition of “grievous and irremediable” in the bill should be eliminated. In its place, we believe that proposed paragraph 241.2(1)(c) should be amended to state that a person must have a grievous and irremediable medical condition, including an illness, disease, or disability, that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. This, we believe, will bring the criteria in line with Carter.

If Bill C-14 is not amended to eliminate the requirement that a condition be “incurable” rather than “irremediable”, the requirement that there be an advanced state of irreversible decline, and the requirement that natural death be reasonably foreseeable, the result will be terrible suffering for those Canadians who are barred from accessing medical assistance in dying—and that's what this is about. It's not an academic exercise, or even an exercise, as is often done in this place, quite appropriately, in balancing political interests. It is about the intolerable and unimaginable suffering of real Canadians, and about their rights.

The “reasonably foreseeable” requirement is terribly vague. You've already heard from numerous witnesses who have said so, including The College of Family Physicians of Canada, representing the doctors who are most likely to be dealing with these issues. We believe this requirement, in particular, of reasonably foreseeable natural death, is unconstitutional because it violates the charter right to liberty. It deprives a patient of fundamental choice related to their body. The court concluded that the Criminal Code in its original form, through its blanket prohibition on the right to request a physician's assistance in dying, interfered with liberty by restricting the ability of qualifying patients to make decisions concerning their bodily integrity and their medical care.

It interferes with the charter right to security of the person because it causes a patient to continue to endure suffering, and it interferes with the charter right to life. Since individuals are deprived of the choice of an assisted death, there are some individuals who may take their own lives prematurely in order to avoid intolerable suffering, while they are still physically able to do so.

Now, the government suggests that restricting access to assistance in dying to people whose deaths are “reasonably foreseeable” is justified because it will protect the vulnerable. We've heard already from Mr. Arvay that this argument was used by Canada at court, and the court's decision was clear: Parliament cannot rely on a blanket exclusion of a whole class of people to protect the vulnerable when other less-interfering means are available to do the same thing, for example, to assess decisional capacity on an individual basis. Canada even conceded at the trial, in Carter, and I'm quoting from the Supreme Court reasons:

“It is recognised that not every person who wishes to commit suicide is vulnerable, and that there may be people with disabilities who have a considered, rational and persistent wish to end their own lives”.

There's a really easy way to understand this, and it's that these arguments were made already. As has been described, there is a circle, a class of people, who won a right, who were guaranteed a right. Canada tried to say they didn't have that right; they tried to justify it. Those arguments failed, and that right was recognized. Now the government is taking those same people and trying to pull them out of that protection and use some of the same justifications. This isn't a dialogue. This is the court saying, “This is the law” and the bill saying, “No, it's not the law. We say something else is the law. We say something else is constitutional”. That is just wrong, and frankly, we don't think it will withstand a constitutional challenge, and the result will be costly relitigation of the same point that's already been decided by the Supreme Court of Canada.

In the minute I have remaining, I don't want to spend too much time on it, but I do want to touch on this idea of prior judicial approval that continues to come up in committee. It is a complete departure from current end-of-life practices, and it's one that, of course, as many of you will know, Canada has tried before in respect of abortion, and it was rejected in the Morgentaler decision. The court there held that this procedural barrier of prior approval contributed to violating the charter rights of women by creating delay and, fundamentally, by directly interfering with women's autonomy to make choices about their own bodies by putting a state approval in place in front of their choice. Our experience as counsel with the exemptions right now is that prior approval is costly, time-consuming, prone to delay, and a significant barrier to access. It would be a real mistake for Parliament to reproduce a prior state-approval function for this kind of profoundly personal medical decision when it was soundly rejected nearly 30 years ago in relation to other profoundly personal medical decisions.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Gibson.

[Jennifer Gibson, Director and Sun Life Financial Chair in Bioethics, University of Toronto Joint Centre for Bioethics, As an Individual]

Thank you.

Good morning everyone, and thank you so much for the invitation to join you. As some of you may know, I co-chaired the provincial-territorial expert advisory group on physician-assisted deaths. Most recently I've been working with the Joint Centre for Bioethics task force on medical assistance in dying, in collaboration with health system stakeholders, to prepare for the implementation of medical assistance in dying in Ontario.

Today, though, I'm speaking as an individual. Although the chair has advised that we should not take a philosophical approach, I will be tapping into my disciplinary expertise in ethics and policy to provide an additional perspective to today's conversation.

Over the last few days I've had the opportunity to listen to the testimony of several panels. It has been fascinating and admittedly predictable to see convergence in some areas and continuing divergence in others. Bill C-14 is fundamentally an amendment of the Criminal Code within the parameters of the Charter of Rights and Freedoms and the charter ruling, and it has implications for the conduct of health care. But it is not the comprehensive regulatory regime envisioned in the Carter decision.

This week's discussions underscore how much of the work that we are collectively undertaking through this consultative process is not just legal, although it's about legislation and proper jurisdiction, nor political, although it is part of a parliamentary process. It is also fundamentally what I would call values work, by which I mean the pursuit of a right balance in C-14 of three ethical goals: recognizing and protecting individual autonomy, alleviating or minimizing suffering, and preventing harm. All three ethical goals have been articulated in witness testimonies over the course of the last three days.

As written, Bill C-14 proposes one way to balance these three ethical goals. Specifically, as noted in the preamble, it seeks to strike the most appropriate balance between

the autonomy of persons who seek medical assistance in dying, on one hand, and the interests of vulnerable persons in need of protection and those of society, on the other.

It proposes that this balance be achieved by limiting access to medical assistance in dying to competent adults whose natural deaths are reasonably foreseeable.

Is this the most appropriate balance? Testimony in the last three days suggests otherwise, and I would agree. Witnesses have rightly challenged the definition of “grievous and irremediable medical condition” and particularly proposed paragraph 241.2(2)(d), that is, the much-beleaguered “reasonably foreseeable” paragraph.

In my brief, I recommend removing that “grievous and irremediable” portion entirely and amending proposed paragraph 241.2(1)(c) to bring greater clarity, coherence, and consistency with the parameters already laid out by Carter.

Given its definition of “grievous and irremediable”, Bill C-14 denies medical assistance in dying for competent persons who have a “grievous and irremediable medical condition that causes...enduring and intolerable suffering” but who are not—quoting from the legislative backgrounder—“nearing the end of their lives” or “on a trajectory towards their natural death”, and whose medical condition is not itself fatal.

One might argue, as some witnesses have done, that to limit medical assistance in dying this way offers an important safeguard to protect vulnerable persons who might, as per the preamble, be “induced, in moments of weakness, to end their lives”. But if, as other witnesses have argued, persons like Kay Carter would not be eligible for medical assistance in dying, then many suffering Canadians are being left behind by Bill C-14.

To paraphrase Mr. Bauslaugh's testimony from yesterday evening, Bill C-14 rations compassion only for the suffering of those who are dying. For many, including me, the balance of autonomy, protection of the vulnerable, and minimizing of suffering have not yet been achieved with this definition of “grievous and irremediable”.

There is another area that puts into question whether Bill C-14 is successful in balancing these three key ethical goals. Several witnesses yesterday spoke about the exclusion of mature minors, competent persons who are enduring intolerable suffering from psychiatric illness, and competent persons seeking to make an advance request for medical assistance in dying.

These exclusions, possibly temporary pending further study, as per the non-legislative commitment articulated in the preamble, are explained in the legislative backgrounder as necessary to protect “vulnerable persons” in these “complex” situations. However, exclusion of competent persons on the presumption of vulnerability does not serve the end of balancing autonomy and preventing errors and abuse and may, I fear, actually have the opposite effect of marginalizing and further entrenching the social vulnerability of the very individuals we are seeking to protect.

The protection of vulnerable persons turns on safeguarding competence, voluntariness, and consent. Exclusion of otherwise competent persons may be justifiable to the extent that this is proportional and necessary to prevent another injustice. Failing this, though, these exclusions violate the autonomy of competent persons in these groups and unjustly force these individuals to remain in a state of enduring and intolerable suffering.

Waiting until the fifth year following royal assent to address the results of additional study would be neither reasonable nor just. Hence, echoing other witnesses, my brief recommends that Bill C-14 be amended to establish an expedited schedule for study of medically assisted dying involving mature minors, competent persons with primary psychiatric illness, and persons who have given advance consent while competent.

I will close my brief remarks with the final reflection on vulnerability as it relates to Bill C-14. The call to protect the vulnerable is one that we all share, and it's morally praiseworthy. However, we must ask ourselves who decides who is vulnerable. Is it the individual through his or her lived experience, or is it the rest of us in society who decide what type of vulnerability matters and to whom, and what the appropriate response to vulnerability is?

Witnesses have offered different responses to these questions. Some wish to set limits on which competent person should be eligible for medical assistance in dying, excluding those who are perceived to be in need of protection or susceptible to moments of weakness. Others wish to set up procedural safeguards to protect competence, voluntariness, and consent.

Bill C-14 offers an uncomfortable compromise among these different responses, tilting the balance of ethical goals precariously away from preserving individual autonomy and minimizing intolerable suffering of competent persons.

I know we can do much better for Canadians.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Gibson.

Now we will move to questions for the panel, beginning with Mr. Cooper.