Justice Committee on May 9th, 2016

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Ladies and gentlemen, we're going to reconvene.

The next amendment for consideration is CPC-8.1.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

I apologize.

I also have to tell you that there is a conflict between amendments CPC-8.1 and BQ-2. I said it earlier, but I am repeating it so you would know that, if amendment CPC-8.1 is adopted, amendment BQ-2 cannot be moved.

[Ted Falk, Conservative, Provencher, MB]

We want to change the definition under eligibility requirements for medical assistance, paragraph 241.2(1)(c), “they have a grievous and irremediable medical condition”. We're proposing to amend it to “they have a terminal medical condition”.

I think there's merit in that. An end-of-life scenario I think is probably not a bad place to start, if we're going to open up legislation for physician-assisted death. Along that theory of walking before you run, a terminal medical condition is definitive, and we don't, by mistake, allow people to access this for other reasons.

We had a similar motion.

I'd be prepared to leave it at that.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Falk.

Does anybody else wish to speak to this?

[The Chair, Liberal, Anthony Housefather]

Perfect.

(Amendment negatived [See Minutes of Proceedings])

I'd like to welcome Mr. Warawa to the committee. He is replacing Mr. Nicholson.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

We will now move to amendment BQ-2.

I give the floor to Mr. Thériault.

I want to point out that amendment BQ-2 conflicts with amendments NDP-2 and NDP-3. Therefore, if amendment BQ-2 is adopted, amendments NDP-2 and NDP-3 will be negatived.

Mr. Thériault, go ahead.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Mr. Chair.

Under the bill, for medical assistance in dying to be provided, it must be shown that an individual is in an advanced state of irreversible decline in capability and that their natural death has become reasonably foreseeable in all of his or her medical circumstances, without requiring a specific prognosis in terms of their life expectancy. The lawyer who argued that issue before the Supreme Court, Mr. Arvay, as well as the Carter family lawyer and the Barreau du Québec have told us that those criteria are not part of the Carter decision rendered by the Supreme Court of Canada.

Moreover, the reasonably foreseeable death criterion poses interpretation issues, even taking into account other criteria that can affect patients' exercise of their right to assistance in dying, as it leads to a legal uncertainty. As we know, the devil is in the details. That is why the Barreau du Québec told us it would be better to limit ourselves to the definition set out in the Carter decision. Through this amendment, we are making a connection between the eligibility criteria part and a few elements that define grievous and irremediable health conditions.

I will read the amendment:

(c) they have a grievous and irremediable medical condition, whether an illness, a disease or a disability, that causes them enduring and intolerable suffering given their medical circumstances; (b) by adding after line 19 on page 5 the following: (1.1) For the purposes of paragraph (1)(c), the person need not submit to treatment that is not acceptable to them in order for their condition to be considered irremediable.

So we feel that, by doing this—and we will propose another amendment later on that will consist in completely eliminating definitions of grievous and irremediable medical conditions—we touch on all the eligible elements under the charter and under the Carter decision.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

I'm launching the debate. Would any committee members like to speak to this issue?

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

Thank you, Chair.

I'd like a procedural intervention here. I very much support the thrust of what Mr. Thériault is suggesting.

My amendment goes to the same place and tries to do it in a more concise way. I would make some distinctions.

Do I speak to his or talk about mine instead? How do you want us to proceed?

[The Chair, Liberal, Anthony Housefather]

Theoretically from a procedural vantage point, if you prefer yours, you should vote down his so you can come to yours, but I'm happy to let you argue why you're doing that. It could be that you believe yours is better.

[Murray Rankin, NDP, Victoria, BC]

I agree entirely with the thrust of what Mr. Thériault has tried to do. That is use the language the Supreme Court of Canada used.

My proposed amendment, which is NDP-2, follows his in the material. You will see that the language, if not verbatim, is as close as we could draft it to be to what the Supreme Court of Canada said.

You will notice that Mr. Thériault has tried to do the job with two sections. I've tried to use one section for simplicity and clarity.

There are also some technical differences. For example, he talks about “causes them enduring and intolerable suffering given their medical circumstances”.

The words of the court don't say “medical circumstances”. Similarly, they don't use the word “intolerable” just “enduring”.

Again, I very much appreciate what Mr. Thériault has tried to do, but I believe our version of accomplishing that objective is a cleaner, simpler way to do so, and it's entirely in line with the Supreme Court of Canada's unanimous decision.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Rankin.

Does anyone else wish to intervene?

Mr. McKinnon.

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

These paragraphs go to the heart of the bill. I'd like to address this amendment plus Mr. Rankin's amendments.

They are about who can or cannot avail themselves of physician-assisted dying.

I appreciate this amendment because it swings the true focus to the patient's enduring and intolerable suffering rather than the nature of the disease or ailment and whether or not it's terminal or represents some manner of decline. I feel that the salient part of the bill is the patient's enduring and intolerable suffering.

However while I appreciate these amendments, I fear that if any of them pass, this bill will not pass the House so while I can't vote against the amendments, I can't support them either so I will abstain from all three.

[The Chair, Liberal, Anthony Housefather]

Is there any further debate?

Mr. Thériault, do you want to close the debate on the matter?

[Luc Thériault, Bloc, Montcalm, QC]

The NDP amendment uses practically the same terms: “... that causes them enduring suffering that is intolerable to them in the circumstances of their condition;”.

We have to make a distinction between the final stage of life and the final stage of an illness. Someone may in fact be in the final stage of an illness and live for a very long time, but individuals with certain degenerative conditions could be in a vegetative state—a situation that average people deem to be completely unacceptable. I noticed earlier that there was some confusion over this.

I feel that, by adopting these amendments, we would be complying strictly with the Carter decision and would avoid any issues related to legal challenges. An individual can find themselves in a situation where someone would claim that their condition can be healed or a treatment can be administered, while palliative care has been accepted and considered a good medical practice for a long time. I'm talking about imposing treatments that constitute aggressive therapy.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Thériault. We will vote on amendment BQ-2.

(Amendment negatived)

[The Chair, Liberal, Anthony Housefather]

We will now move to amendment NDP-2.

Mr. Rankin, can I just ask, again, procedurally, the difference between NDP-2 and NDP-3? You're repeating the same thing but you're adding a paragraph in NDP-3.

Is NDP-3 an alternative to NDP-2 if NDP-2 doesn't pass?

[Murray Rankin, NDP, Victoria, BC]

Yes. Now in terms of the very helpful intervention by Mr. McKinnon, I'd just like to reflect on what I understood him to say. He's giving us a political judgment about what was acceptable, if I understood. You said it couldn't pass in the House. I find that a very troubling observation. This language is my best effort to capture as closely as I could the exact wording of what a unanimous Supreme Court of Canada told us.

At the risk of using an inappropriate analogy, it's like saying, after the Civil Marriage Act was passed for same-sex marriage, that we can't necessarily deal with it in the House because we don't agree with it, or we're uncomfortable with it. It would have been the same with abortion, had there been legislation after the Morgentaler case.

I fail to understand as a matter of law how we can say we can't go along with what the court unanimously told us they meant. I have a lot of trouble understanding that argument.

[The Chair, Liberal, Anthony Housefather]

Do you want to further intervene to explain your motion or do you feel you've explained enough?

[Murray Rankin, NDP, Victoria, BC]

That's my explanation. Those are the words of the court judgment. That's all it is.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

With regard to the provisions here that deal with the fundamental essentials of the bill, this was a response to the Carter decision on particular facts of the cases before the court at that time. It's up to Parliament. In fact, the decision anticipated, of course, that Parliament would draft a bill that would respond to Carter that would be able to perhaps define things such as “grievous and irremediable”. I believe it's up to us as parliamentarians to do our best to craft a bill that responds to the Carter decision and also takes into account other cases that will be across the country.

I believe that the bill strikes the right balance. This amendment would clearly go against the essential elements of the purpose of “grievous and irremediable” being attempted to be defined in the bill, and I believe it complies with Carter. I also believe the evidence we heard from Professor Dianne Pothier, for example, that clearly states that it's up to Parliament. Parliament has the ability to do this, and I believe it's in keeping with the spirit of that evidence before our committee that I'll be voting against this amendment.