Justice Committee on May 9th, 2016

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, sorry for the delay. I would like to call the Standing Committee on Justice and Human Rights to order. It's a great pleasure to have with us today from the Department of Justice Carole Morency, Joanne Klineberg, and Julie Besner. From the Department of Health, we have Helen McElroy and Sharon Harper. Thank you for coming.

Ladies, it's very nice to have you. We are going to be doing a clause-by-clause review of Bill C-14. This is the first clause-by-clause review this committee has undertaken. The parliamentary clerk has provided me with some instructions that I would like to give members of the committee so that you all know about clause-by-clause review and how it works, as some of us have not done this before. As the name indicates, this is an examination of all the clauses in the order in which they appear in the bill. I will call each clause successively, and each clause is subject to debate and a vote. If there are amendments to the clause in question, I will recognize the member proposing it, who may explain it. The amendment will then be open for debate. When no further members wish to intervene, the amendment will be voted on. Amendments will be considered in the order in which they appear in the package that each member received from the clerk. If there are amendments that are consequential to one another, they will be voted on together.

In addition to having to be properly drafted in the legal sense, amendments must also be procedurally admissible. The chair may be called upon to rule amendments inadmissible if they go against the principle of the bill or beyond the scope of the bill, both of which were adopted by the House when it agreed to the bill at second reading, or if they offend the financial prerogative of the crown. If you wish to eliminate a clause of the bill altogether, the proper course of action is to vote against that clause when the time comes, not to propose an amendment to delete it.

Since this is a first exercise for many new members, the chair will go slowly. I've been advised by some members that I seem to go fast, so I'm going to try to go slowly to allow all members to follow the proceedings properly. If during the process the committee decides not to vote on a clause, that clause can be put aside by the committee so that we can revisit it later in the process.

As indicated earlier, the committee will go through the package of amendments in the order in which they appear and vote on them one at a time unless some are consequential and dealt with together. Amendments have been given a number in the top right corner to indicate which party submitted them. There is no need for a seconder to move an amendment. Once moved, you will need unanimous consent to withdraw it. During debate on an amendment, members are permitted to move subamendments. These subamendments do not require the approval of the mover of the amendment. Only one subamendment may be considered at a time, and this subamendment cannot be amended. When a subamendment is moved to an amendment, it is voted on before another subamendment may be moved. The committee may consider the main amendment and vote on it, and that would be “as amended”. Once every clause has been voted on, the committee will vote on the title and the bill itself. If amendments are adopted, an order to reprint the bill will be required so that the House has a copy for use at report stage.

Finally, the committee will have to order the chair to report the bill to the House. That report contains the text of any adopted amendments as well as an indication of any deleted clauses.

I apologize for speaking only in English, but it would take too long to go over the text again. I hope that you have still all understood by listening to the simultaneous interpretation.

I had a conversation with both Mr. Rankin and Mr. Falk to try to agree on some way that we can move through the numerous amendments in a very concrete way without going through prolonged debate.

One of the things we are going to try to do is this. In the case where the mover of the amendment—I think it's only the case with the Conservatives—is not a member of the committee, I will ask a member of the committee to put forward a motion. It doesn't mean you necessarily agree with it, but put it forward for debate, and then I will allow the Conservative member who put forward that motion to speak to it for the two minutes. Again I'd ask everybody's co-operation.

The same would be true for NDP or Green or Bloc amendments. In the case of the Bloc and the Greens, I will allow Ms. May and Mr. Thériault to speak to the amendments themselves, even though they are not members of the committee. They will be given the same rights as anyone else. It will be two minutes to speak as the mover, and then one minute for everyone else in the committee who wants to intervene. Then I will go back to the mover, in that case, or in the case of the other member who proposed it, for a 30-second rebuttal at the end.

Of course, we will see how this goes, because it's the committee's right to change this as we go through. My goal is to try it that way, and if it's not working, we'll talk with the other members of the subcommittee and try to see how we should change it.

My role as chair is to try to be as fair as possible in the process, to hear people out and to not apply my judgment to anything. I will try to be scrupulously fair and also maintain procedure. That's my goal.

Of course, if there is an amendment that is clearly going to the principle of the bill and is one of the major amendments.... I'll just put two examples: the question of deleting the clause in proposed paragraph 241.2(2)(d) related to “reasonably foreseeable”, or an amendment related to conscience. I'm going to give more time to that amendment for a fulsome discussion, at least the first time that we deal with it. If we've dealt with it five times on five amendments, I think we'll stumble back. But at the very least, where there's a really big issue, I'll try to give people more time.

That being said, the first thing on our agenda is to deal with clause 1. I don't believe there were any amendments proposed for clause 1.

By the way, just for people who are not familiar, we skip the preamble. The preamble comes at the end, because amendments to the preamble should be based only on amendments we have made to the bill in the context of this committee.

We will move to clause 1, which would replace section 14 of the Criminal Code, pertaining to consent to death.

Do we have any debate on this clause?

(Clause 1 agreed to)

(On clause 2)

[The Chair, Liberal, Anthony Housefather]

Now we are on clause 2, and there are a number of amendments. The amendments we will be dealing with on clause 2 include CPC-1, CPC-1.1, CPC-1.2, CPC-2, CPC-3, and CPC-3.1.

We're going to move to CPC-1. This has been proposed by Mr. Viersen. Mr. Viersen, we've had a conversation about this. I believe this is out of order, but I will give you a chance to convince me that it's receivable if you so wish.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

Thank you, Mr. Chair.

I proposed this amendment due to the fact that I really feel this is not health care we're dealing with. I wanted to take any reference to health care out of it, and I wanted it to be a licenced individual...that the justice department could issue licences to allow it. I put it forward to the drafters to say how we could change it to be a licence rather than a medical procedure.

I took reference from the firearms licence. It's illegal in Canada to own a firearm except if you own a licence, so I gave that to the drafters and asked if they could come up with something. This is the amendment they helped me to draft, and I submitted it. If it's inadmissible, it's inadmissible, I guess.

[The Chair, Liberal, Anthony Housefather]

I very much appreciate that. Unfortunately, it goes beyond the scope of the bill. I think it's pretty clear. There is no concept in the bill of licencee, and it just goes beyond the scope of the bill, so I'm forced, unfortunately, to rule out of order this amendment, along with the other amendments that are associated with this, which I believe are CPC-4, CPC-26, CPC-28, CPC-29, CPC-30, CPC-31, CPC-35, and CPC-40, all of which you submitted along this line to consequentially tie together.

I have to rule them inadmissible. I'm sorry.

The good news is there are not that many I've seen that are inadmissible. I'm sorry we started with one, but the good news is most of them are not. We'll have plenty of things to debate.

Is there anything I need to do beyond rule?

[The Clerk of the Committee, Mr. Philippe Méla]

No. That's it.

[The Chair, Liberal, Anthony Housefather]

Perfect.

Now we will move to one that is receivable, amendment CPC-1.1, which is Mr. Falk.

Amendment CPC-1.1 would have the effect of removing “nurse practitioner” from line 35 on page 2.

I'll turn it over to Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chairman.

Many of the amendments I'm moving forward have come out of our study and witness testimony, and also input that we received from members who participated in the process through last week while we were listening to various testimony.

Effectively, this amendment would say that a nurse practitioner is not someone who would be eligible to qualify for the exemption for medical assistance in dying. There are also probably about another half a dozen amendments that would change that terminology throughout the bill, which means it would have to be a medical practitioner who does the assessment, makes the decision, and does the administration.

The reason for this is that we don't even allow nurse practitioners today to issue prescriptions with narcotics. We don't allow them the ability to ask for an X-ray. When we're looking at something as sobering as physician-assisted suicide—the assessment, the prescription, and the administration of that—I think it needs to be somebody at the medical practitioner level. For that reason, I've made this amendment that would exclude nurse practitioners from that category.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any debate?

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

With regard to this amendment, I would not support it. I believe it was clear in the witness testimony we heard that nurse practitioners do provide a service in order for people in remote areas to have access to this sort of health care provision.

With regard to the CMA, they were okay with it. With regard to the nurse practitioners' presentation, they were okay with it as well.

As well, it's up to the provinces to deal with the substance of regulating the profession, and that could vary from province to province. Obviously, we heard from the minister that she would like to have a pan-Canadian approach.

I believe it is appropriate to have nurse practitioners carry out this function.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

The intention of the government certainly was to ensure that medical assistance in dying would be available across the country. Medical practitioners are as rare as hen's teeth in some parts of the country, including rural and remote areas. If there's a decision taken by the committee to rule out the provision of medical assistance in dying by nurse practitioners, there will be a lot of Canadians effectively denied this service, as was pronounced by the Supreme Court of Canada.

[The Chair, Liberal, Anthony Housefather]

Does anyone else wish to intervene?

If not, I'm going to turn it back to Mr. Falk for his closing.

[Ted Falk, Conservative, Provencher, MB]

Again, I would just like to say that this is a very serious procedure. It's a very serious assessment. If we're going to allow someone to do this who we don't even allow to issue a narcotics prescription or to ask for an X-ray, it seems to me a little inconsistent there in what is permissible by that particular profession. I think this needs to be taken with much more care and seriousness than what is being suggested here.

[The Chair, Liberal, Anthony Housefather]

That closes debate.

(Amendment negatived [See Minutes of Proceedings])

I'll leave it to Mr. Falk to tell us whether he wants to introduce his other amendments that tie in or not, when we get there. We'll have to go number by number. I don't know the numbers.

We're going to go, then, to amendment CPC-1.2. It is also Mr. Falk's.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Mr. Chair, it's the same situation. It's the same issue.

[The Chair, Liberal, Anthony Housefather]

Will you not put that one forward, then?

[Ted Falk, Conservative, Provencher, MB]

I'll withdraw it.

[The Chair, Liberal, Anthony Housefather]

The next one we get to is CPC-2, which is Mr. Genuis.

Mr. Genuis, one of the other members has put it forward, Mr. Nicholson. Please speak to your amendment.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

This amendment removes the section that protects somebody from prosecution who kills someone who does not meet the criteria. Certainly a major goal of this process has been to protect the vulnerable, those who do not consent, those who do not meet the criteria. Obviously it's very important that the legislation is structured to ensure that the only lives taken are of those who meet the criteria prescribed by the legislation, whatever those criteria are. But this clause says that somebody who takes the life of a person who does not meet the criteria, perhaps doesn't consent, perhaps isn't able to consent, perhaps is not ill, would still escape prosecution if this person taking the life had a reasonable but mistaken belief that the criteria were met.

I think it is imperative that we put the obligation on the person who's doing this to ensure that the criteria are met, and we make them responsible for killing a person who does not meet the criteria, because if we don't do that, I think we render the criteria largely meaningless and we make effective prosecution of those who take life in this context outside of the criteria virtually impossible.

What sense is the criteria if all a person has to do to avoid prosecution is demonstrate beyond a reasonable doubt that they had a reasonable but mistaken belief? Of course, the implication of this is that a person might be prosecuted who tried to act reasonably but was mistaken. But we have categories of crime like manslaughter where if you take a person's life, if you do something extremely serious, and you didn't take the necessary precautions to ensure that you weren't going to do that, then you are responsible. This is serious. This is necessary for protecting the vulnerable to make sure the people who don't consent don't lose their lives in this.

[The Chair, Liberal, Anthony Housefather]

Debate?

Mr. McKinnon.

[Ron McKinnon, Liberal, Coquitlam—Port Coquitlam, BC]

I think the point of these two paragraphs is that it is the medical practitioner or the nurse practitioner who's actually performing the function who has the onus to ensure that the qualifications are met, and someone who helps them in doing this has a fair expectation that they are acting correctly, and it's a reasonable expectation.

I would vote against this amendment.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Chair, I'm not sure if this is the appropriate place in which to make this observation, but you'll recall the evidence we heard from Mr. DelBigio and Mr. Fowler of the criminal defence lawyers association where they talked about the need for this to be amended to say rather than “reasonable but mistaken”, “honest but mistaken”, and they said that, as I recall, for a couple of reasons. The first was that “honest” is a subjective determination and they thought that given that this is a defence to first-degree murder, it made sense that it be changed in that way.

I realize it doesn't go exactly where my colleague wants it to go but I thought I'd use this as an opportunity to put it out. I would be voting against the amendment as presented.

[The Chair, Liberal, Anthony Housefather]

What I would say, Mr. Rankin, is that if you wanted to put something like that forward, you'd have to put it forward as a separate amendment because it goes against the principle of the amendment put forward by Mr. Genuis.