Justice Committee on May 5th, 2016

[Josh Paterson]

There are a number of reasons. I've enumerated some of them, and our written submissions describe the matter in a little more detail.

Let's say there was another charter rights case in which there was a class of persons who won a right. Take gay marriage, for example. Let's say that in response to a case on gay marriage—or pension rights, or that kind of thing—the government of the day said, we're going to bring in a bill, but because the plaintiff was a gay man, and although yes, there was mention of lesbians and trans people throughout, and so forth, we're going to just restrict it to gay men, and it will be up to lesbians at some point in the future to bring another case.

In some ways this feels very analogous to that. There was a right recognized for an entire class of people. Now this bill is reaching in and taking people out of it. The dialogue, if I may say so, between Parliament and the courts is meant to be, in terms of rights recognition, about the implementation of the right. We can all have different views on how many doctors and how many witnesses and waiting times, and so forth. The committee will know our views; others have different views.

That's what the dialogue is about. It cannot be about simply cutting people out.

A great example comes from not even the “reasonably foreseeable” context, but the “incurable” context, wherein, as you'll note in our written submissions, you could very well have a person in late-stage cancer—anal cancer, in the example we used in our written submissions—for whom further rounds of very painful and difficult treatment could potentially, for her, cure her illness, could eliminate the cancer; yet she may very well say, “That is going to cause burns to my vulva and to my anus and cause me to have sexual dysfunction and cause all these other awful things—even in potential success, if I do succeed—but I don't want to face that.” That person could very well be cut off because of this “incurability”.

What the Supreme Court said was “irremediable”. Then they defined it: they said “by any means acceptable to the patient”. There have been some questions about this. I know Mr. Bittle had an exchange the other day with the Department of Justice about it and about whether this is the same or different. The minister and officials have tried to suggest, I think, that it's the same, but fundamentally it appears different to us.

The minister contended that while there's still a piece about the pain or suffering not being remediable by conditions acceptable to the patient, it's different:, because that individual could already be knocked out by the “incurability” criterion, because a doctor might well say, we could potentially cure this for you, and then, the fact that there might be some other remedy or series of remedies, some of which are acceptable to the patients and others which aren't, is irrelevant, because we've made incurability the baseline.

Those are just a few different ways in which we think this doesn't comply with the Carter judgment.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We're going to go to Mr. Bittle now.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

Mr. Paterson, I want to give you a brief opportunity. You wanted to respond to something Mr. Cooper said.

[Josh Paterson]

I did. Thank you very much.

Mr. Cooper made remarks, Mr. Chair, to the effect that the plaintiffs had suggested there be various safeguards, including mandatory psychiatric evaluations and other things. Those were in our submissions replying to Canada, which speculated regarding individuals whose capacity we couldn't be sure about.

We've been clear all this time that in respect of individuals, when a doctor isn't sure, of course there are other methods that can be used, including psychiatric evaluations and capacity assessments and all kinds of other things. We were not asserting in the air that we think all of those kinds of restrictions are necessary or desirable. They are tailored responses to individual issues. What this bill does is create a blanket exclusion because of some concerns we may have about some individual issues.

Thank you.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you.

Dr. Chochinov, having read your brief, I will ask you whether “reasonably foreseeable” means “terminal”.

[Dr. Harvey Chochinov]

That's an interesting question. There's been a great deal of debate on what it means.

It's a difficult term. I think it means that somebody is on the course towards death. There has been a variety of terms used, whether “terminal” or “less than six months” or “reasonably foreseeable”. I think this term provides perhaps some further latitude than what currently exists in Oregon, for example.

Oregon, as you know, uses “less than six months”. In reference to Oregon, when we visited there, what Eli Stutsman, the lawyer involved in drafting the legislation for both Oregon and the State of Washington, said is that even after 17 years of experience with the Death with Dignity Act, there is no appetite whatsoever to extend the criteria beyond six months. Even when he was asked about 12 months and about whether he was excluding people who might otherwise access dying with dignity, he said there is no appetite, even amongst the strongest proponents; and that six months or less is what they've restricted it to after 17 years of experience.

The fact is that we're going to have to set the bar somewhere, and I think “reasonably foreseeable” death is probably a prudent place to set that bar, and that we should see, after five years' experience, where it takes us.

[Chris Bittle, Liberal, St. Catharines, ON]

Thank you so much.

It's probably not fair of me to ask, since you're not a lawyer, but we have received a transcript from the Supreme Court explicitly saying that they rejected the concept of “terminally ill”.

I'll move on to a different point concerning judicial oversight. I know you're not a lawyer, but this seems to me to be a typical lawyer answer to a problem: just add more lawyers and it will fix everything. I'll give you the example of a jurisdiction that's to the west of my riding, which is Haldimand County.

It has a small courthouse. The motions court, which would hear applications, sits once a month. The last time I brought an emergency application in the St. Catharines court, which is a much busier jurisdiction, it took me three weeks to see a judge—on an emergency basis.

I'll open this question up. Aren't we just prolonging suffering? Perhaps this is great in the vacuum of legal theory, but we're just prolonging suffering based on judicial resources. Isn't that true?

[Dr. Harvey Chochinov]

First of all, are we committed to moving forward in a way that is transparent? Are we moving forward in a way that also acknowledges that many of the things that drive a wish to die extend beyond the purview of medicine?

To ask doctors to be making evaluations on things that have little or nothing to do with medicine is placing them in a very difficult position. Even those who are strong proponents and who wrote the report for the Royal Society said that it might not ideally be physicians who should be involved in making these determinations. The availability of judicial oversight acknowledges that we are going to be open to including all areas of expertise, whether it's of physicians, social workers, or lawyers, to determine what is driving the wish to die.

If the issue is whether this is going to be too arduous a process, I would say that we're talking about life and death; these are very important decisions. In this day and age, we should be able to put the resources into it so that we can expedite the process, so that we are not prolonging suffering.

[Chris Bittle, Liberal, St. Catharines, ON]

Mr. Paterson or Dr. Gibson, would you like to respond?

[Josh Paterson]

Sure. Thank you.

As it is, this bill proposes a number of restrictions and hurdles that are not the case anywhere else in life-and-death decisions in medicine—decisions that are made every day to withhold and withdraw life-sustaining treatment, decisions that are made every day that involve death by some action or intervention taken. Whether it's administering something or yanking something out and taking it away, an action is taken and people die. We don't do this for anything else.

The courts have been clear. It was argued, but it was not accepted that there was any ethical distinction between assistance in dying as contemplated in Carter and these other forms of treatment that result in death. We thus see no justification for putting in some kind of state decision-making process. Whether or not it's actually government officials, if they are using authority delegated from Parliament, they are making a decision using the state's authority.

Putting state decision-making in the way of patient decision-making just makes no sense. It will increase delay; it will intimidate people potentially; it's just bad policy, and it doesn't make sense in the context of the medical profession.

[The Chair, Liberal, Anthony Housefather]

I can see Dr. Chochinov is putting his hand up, but we're out of time on Mr. Bittle's round.

Did you have anything you wanted to say that was different, Ms. Gibson? He did ask all of you.

[Jennifer Gibson]

No, I just want to concur with my colleague.

[The Chair, Liberal, Anthony Housefather]

Okay.

We've been asked to have a lightning round. The rules for it are that the question can be no longer than 30 seconds and the answer no longer than 30 seconds. Whoever has one, we're going to it.

Who has a question?

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you very much.

I'll pose this to you. We talked about whether Parliament should be carving out groups that are either vulnerable or potentially vulnerable, but wouldn't you agree that we do that already with respect to children? Whether it be the Criminal Code or all sorts of legislation, we specifically refer to them because of their potential vulnerability. That could be the argument as to why they are not included in this bill.

[Josh Paterson]

Can I grab that for 30 seconds?

[The Chair, Liberal, Anthony Housefather]

I think it was addressed to you, Mr. Paterson.

[Josh Paterson]

Yes, governments make provisions for different classes of people all the time. In this case, the Supreme Court has already said that these classes of people—people with terminal illnesses and people who don't have terminal illnesses who qualify—are entitled to this right. The constitutional floor has been set. It's no longer open for Parliament or government to pull people out. It just isn't open to them.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Is that including children?

[Josh Paterson]

Well, children were not in the judgment; it was competent adults. Children are another question.

[Rob Nicholson, Conservative, Niagara Falls, ON]

So you have no problem with the exclusion—

[Josh Paterson]

We have other issues about that, but in terms of respecting Carter, it's not open—in fact, it's unlawful—for the government to pull people out.

[The Chair, Liberal, Anthony Housefather]

Mr. Bittle, did you have a lightning question?

[Chris Bittle, Liberal, St. Catharines, ON]

Yes.

We talked about and discussed in numerous panels mandatory consultations in various areas. Is it the federal government's responsibility—and I look to Dr. Gibson and Mr. Paterson—to start regulating in the medical profession, when it hasn't ever done so before?

[Jennifer Gibson]

Through our own consultation, what we heard from multiple actors and stakeholders was that this is provincial jurisdiction, and that is the right place for it.

It's also a regulatory role. The regulatory bodies are designed for serving the public interest. There are mechanisms in place to ensure that their members are actually behaving in appropriate ways, and I think that's where we need to be putting the focus.

[The Chair, Liberal, Anthony Housefather]

Thank you so much.

Is everybody okay?

Let me again thank the witnesses.

Thank you for testifying by video conference, Dr. Chochinov.

Thank you very much, Ms. Gibson and Mr. Paterson, for coming in. We really appreciate it.

The meeting is adjourned.