I do.
Evidence of meeting #14 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 suffering.
A recording is available from Parliament.
Evidence of meeting #14 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 suffering.
A recording is available from Parliament.
9:25 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
In the event, however, that it is further defined through the definition provided in this legislation, would you agree that “serious and incurable illness, disease or disability”—I understand your hesitation about “incurable”—and “advanced state of irreversible decline” would adequately define the condition?
9:25 a.m.
As an Individual
The answer is no.
First of all, it's interesting that although the trial judge in the Carter case used language that was somewhat similar to “an advanced state of irreversible decline”, she used the language to say that the person had to be in an advanced state of weakening capacities. We didn't argue that. She came up with that on her own. Interestingly, though, the Supreme Court of Canada did not adopt the trial judge's position on that one point; they essentially adopted the trial judge's position on everything except that one point. I see the clause's words “advanced state of irreversible decline in capability” as very similar to what I think the trial judge was getting at.
One problem I have with that clause is that I really don't know what it means. If it requires some sort of progression of “worseness”—I'm not sure whether that's a proper phrase—then I reject it.
One reason we argued against “terminal” is that we had in mind, most notably, a person by the name of Tony Nicklinson, whom you around this table have probably heard about, the man who had locked-in syndrome. He was struck down by a massive stroke when he was 50 years old. He couldn't move one muscle in his body, other than his eyelids—or, I believe, his eyeballs—and yet he was going to be in that condition for at least 20 years. We thought, it's one thing to suggest that someone might be able to tough out the suffering for a few months when death is imminent, but to suggest that someone has to tough it out for 20 years is just inhumane; it's just cruel; it's a form of torture.
When Tony Nicklinson was struck down by this stroke and had developed something called locked-in syndrome, was he already in an advanced state of irreversible decline in capability? Maybe he was, if all that means is that you're symptomatic rather than having something you worry about, but if it requires some sort of progression, a getting worse, well, he wasn't going to get any worse.
So I have a problem with that clause. It raises more questions than it answers. The whole purpose of this legislation, as I heard when the federal government appeared at the Supreme Court of Canada to request an extension, is provide clarity for the medical profession. The medical profession might be chilled by just the Carter decision alone. This, then, was designed to provide clarity. Well, this just adds uncertainty; it doesn't provide any clarity.
9:25 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Thank you.
I understand that you think this particular clause should be removed, but in the event that it is retained, is it better to keep it as an “and” as it is, or as an “or” as with the previous one, as Dr. Schuklenk proposes in his brief? Or is it a moot question because it should be gone anyway?
9:25 a.m.
As an Individual
It should be gone anyway, but obviously, if I had to choose between the reasonable foreseeability clause and the “advanced state of irreversible decline” clause, I definitely want you to get rid of the reasonable foreseeability clause. If the advanced state of irreversible decline clause could be better phrased to simply mean that a person is symptomatic, then it might be workable. Our position is that you just don't need this definition; the Supreme Court of Canada has already sufficiently defined “grievous and irremediable”.
One reason, by the way, that we rejected the idea of “incurable” is that I don't know whether any cancer is actually curable, but there may be some diseases or illnesses that are curable but the cure for them is actually worse than the disease.
One thing I want to say is that I've heard the minister say in the House that the premise of this bill is to alleviate suffering in the dying process. The premise of the Carter decision is to allow physician-assisted dying to remedy or alleviate intolerable suffering in life. The premise of the bill is just at odds with the premise of the Carter decision.
I'll leave it at that.
9:30 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much.
You have time for one very short question.
9:30 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
This is an item that I don't think has been raised by any witnesses yet. One of the criteria for being eligible for medical assistance in dying is that the person is eligible outside of for any applicable residence or waiting period for health services funded by a government of Canada. While I understand the policy purpose of this, it strikes me as a little incongruous to have it in the Criminal Code, and it might detract from the rights of people in general who might otherwise legitimately want to receive medical assistance in dying. Could you comment on that?
9:30 a.m.
As an Individual
I don't really have much of a comment on that point. I'm sorry.
9:30 a.m.
Liberal
May 5th, 2016 / 9:30 a.m.
NDP
Murray Rankin NDP Victoria, BC
Thank you, Mr. Arvay.
You've obviously been very categorical here this morning with us when you've said essentially—if I'm not putting words in your mouth—that if we as parliamentarians were to pass Bill C-14 in its present form, we would be passing legislation that is unconstitutional. You've said that I think because you've indicated that even Madam Justice Karakatsanis says “we rejected terminally ill” as an approach.
You've argued here that we should leave “grievous and irremediable”, as in the words of the court, for fear that we will undercut what the Supreme Court said through legislation of the kind that's currently before us.
Essentially, you've also said—and here's where I want to ask a question about—that “Carter created a floor and not a ceiling”. I think you meant that Parliament cannot take away rights that are provided in Carter. In other words, if Carter creates a large circle, we can't simply create a subset of that circle. Is that essentially what you're saying in lay terms?
9:30 a.m.
NDP
Murray Rankin NDP Victoria, BC
Therefore, to go ahead and pass legislation like this that would not protect physically disabled people who are suffering intolerably, as they understand it, and to accept cures that they think inappropriate, would be to fly in the face of the highest court in the land and would therefore open us up to immediate constitutional challenge if this bill goes forward.
9:30 a.m.
NDP
Murray Rankin NDP Victoria, BC
I need to know, then, what amendments we have to make to this bill in order to make it charter-compliant and Carter-compliant, because one of the witnesses told us earlier that in Quebec there are examples of people who have had to starve themselves to death in order to avail themselves of physician-assisted dying in that jurisdiction.
That is likely the reasonably foreseeable consequence of enacting this bill as well. Would that constitute cruel and unusual punishment for people who are required to do that?
9:30 a.m.
As an Individual
It would be a perverse outcome not only of Carter but of this bill. This person Tony Nicklinson who I mentioned, actually brought his own case in England, and he was unsuccessful there. He ended up starving himself to death. As anybody who knows anything about starving yourself to death knows, that's pure torture.
The trial judge and the Supreme Court of Canada recognized that, and yet under this bill, a person who, like Tony Nicklinson, has 20 years of utter and intolerable misery and suffering ahead of him, would not be able to seek the assistance of a physician in dying but would nevertheless be able to starve himself to death, and maybe not quite to death, maybe to a point where a doctor would finally say, “You know, if you don't drink or eat something in the next few days, your death is reasonably foreseeable.” Then bango, he's entitled to physician-assisted dying because he has opted to engage in this process that, in my view, is cruel and unusual.
That seems to be a very perverse outcome of a bill that's supposed to prevent people from suffering.
9:35 a.m.
NDP
Murray Rankin NDP Victoria, BC
You argued against Mr. Frater, the Justice lawyer in the extension application. You brought to our attention today this language from the court, which says explicitly in Carter, “we rejected terminally ill”.
Is there any way of reading these sections in this bill in which they define “grievous and irremediable” but saying that it's about temporal change? Can you read it in any other way?
9:35 a.m.
NDP
Murray Rankin NDP Victoria, BC
In light of that exchange, how can the government be bringing forward legislation that appears to be limited to terminally ill or late-life conditions in the face of that rejection by the Supreme Court?
9:35 a.m.
As an Individual
Obviously I have no idea who is advising the government and what's motivating the government, but to be very candid about this, I'm dismayed that I have to be here. We fought a very long, hard, expensive battle on this issue, and we were successful. For reasons that just baffle me, the government lawyers or the government advisers seem to fail to acknowledge or come to grips with the fact that the Carter decision allows all grievous and irremediably ill people, irrespective of whether their death is foreseeable, to avail themselves of physician-assisted dying.
What I think has happened—and it's so regrettable—is that the government has somehow become captured by the rhetoric of the disabled rights organizations. Their rhetoric is that all physically disabled people are presumptively and irrebuttably presumptively vulnerable and that they're incapable of ever making their own decision as to when their suffering is intolerable.
They take that position because many disabled people—and I am one of them—have managed to tolerate and adapt to their suffering and choose life over death. But to suggest that all physically disabled people have to subscribe to that notion is not only patronizing but infantilizing; it's treating all physically disabled people as children, incapable of agency and autonomy. I find that incredibly offensive. The trial judge did; the Supreme Court of Canada did. I don't get why this government doesn't understand that.
9:35 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you, Mr. Arvay.
Thank you very much, Mr. Rankin.
Mr. Fraser.
9:35 a.m.
Liberal
Colin Fraser Liberal West Nova, NS
Thank you very much, gentlemen, for appearing today and for your excellent presentations.
I'd like to start with Mr. Nicholas, if I could.
You talk about palliative care. I know the government is committed to putting money into palliative care. Everyone obviously agrees that this needs to be an important component going forward to ensure there is compassion in end-of-life decisions.
With regard to freedom of conscience, I don't know that anyone would disagree that there should be a right for people to not perform these tasks, if doing so goes against their conscience.
You talk about no other foreign jurisdiction forcing medical practitioners to carry this out. But you'd agree with me that there is no national government within a federation that has dealt with this situation. All of the other ones are not federal governments.
9:35 a.m.
Former Lieutenant-Governor of New Brunswick, As an Individual
You're thinking of the type of government we have in this country as distinct from those in other countries.
9:40 a.m.
Former Lieutenant-Governor of New Brunswick, As an Individual
Well, irrespective of the form of government, the fact of the matter, in my opinion, is.... This witness is a counsel, and I used to be a counsel, and you cannot foreclose a defence argument in the future on any legislation under the Criminal Code, because it's subject to the charter. All sections are like that. If you don't specifically put into legislation protection of the right to conscience, it's going to be brought up anyway.
If you're silent as a Parliament on this issue, there probably won't be enough courtrooms in Canada to handle all the litigation and defences that are going to occur because of this, because you're dealing with thousands and thousands of people involved in the medical profession.
9:40 a.m.
Liberal
Colin Fraser Liberal West Nova, NS
That's referenced, obviously, in the preamble. There are suggestions to that effect.
With regard to the law itself, what we're doing is amending the Criminal Code, and it lies in the jurisdiction of the provinces and the medical profession itself to regulate and to pronounce on these conscience rights.
Would you not agree with that?