Justice Committee on May 9th, 2016

[The Chair, Liberal, Anthony Housefather]

We're now going to vote on amendment CPC-14.2.

(Amendment negatived [See Minutes of Proceedings])

Amendment CPC-14.3 was identical, so Mr. Falk is withdrawing it, which brings us to amendment PV-4, which is by Ms. May.

I will just let everybody know that amendment PV-4 conflicts with CPC-15 and CPC-15.1, so if PV-4 is adopted, CPC-15 and CPC-15.1 cannot go forward.

Ms. May, the floor is yours.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

This, again, is part of an effort to fix what I find to be quite an unfortunate series of definitions of the Supreme Court term “grievous and irremediable” that take it in a direction that conflicts with the court's ruling. Earlier we heard from Mr. Rankin about the somewhat farcical nature of “natural death has become reasonably foreseeable”. I don't know how to break it to all of us here today, but I think we do know none of us is getting out of here alive. This is a mortal life. All of our deaths are “reasonably foreseeable”, and then we have the further addition of them being without any prognosis about the specific length of time we have remaining. In cosmic terms, we don't count for much at all. There's been life on earth for four billion years. If you look at our lives, we're kind of a cosmic blink of an eye.

It's an odd provision. It's odd. What it seems to be trying to say is that the condition has to be terminal, but that, again, conflicts directly with what the Supreme Court said in Carter. I find proposed paragraph 241.2(2)(d) to be so difficult that there's nothing to be done with it except to delete it, and that is the purpose of amendment PV-4.

[The Chair, Liberal, Anthony Housefather]

I see nobody wants to debate this. Given the controversial nature of this provision, that seems surprising, but I'll let that go.

I'm going to turn it back to Ms. May to close.

Mr. Thériault, you would generally not be able to take the floor, but I will still give you both 30 seconds.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you, Mr. Chair.

You are very nice, and I appreciate it.

I entreat the Liberal Party members to think before they vote against this amendment. According to what I have seen, none of those amendments are proposing changes to this section or its deletion. Since the beginning of the evening, they have been voting as a block against everything we have proposed. The vote in the House will be an odd one. That is not how consensus is created. Practically no substantive amendment that was at all tricky has been agreed to, and I am deeply saddened by the Liberal Party's attitude this evening.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I made all my arguments during my effort to persuade the committee that it is wrong-headed to proceed with this, but I note that the NDP, the Bloc Québécois, and the Green Party have all proposed this to no effect. We're going forward to create more uncertainty. It's very, very unfortunate.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. May, I'll let you close.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Thank you, Mr. Chair.

I'll quote Joe Arvay, a very respected counsel for the Carter decision, and an eminent lawyer who has succeeded in many significant cases in Canada. “There's no question in my mind that this bill, insofar as it has a reasonably foreseeability clause, is contrary to the Carter decision and is unconstitutional....”

By accepting my amendment, you can make a significant effort to ensure that this bill will be viewed as constitutional as opposed to deviating so seriously from the Supreme Court of Canada's rationale as to create yet another court case where the Criminal Code provisions will be struck down again.

[The Chair, Liberal, Anthony Housefather]

We'll now move to the vote on PV-4.

(Amendment negatived [See Minutes of Proceedings])

We will now move to CPC-15, which is also to amend those same lines.

Mr. Falk, will you put it forward on behalf of Mr. Genuis?

Mr. Genuis, the floor is yours.

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

We're all proposing some amendments that clarify the language, and it's interesting that there seems to be a consensus on both sides of this issue that there is a need for some clarification, whichever direction the clarification comes from.

This shifts from the language of “reasonably foreseeable” to the language of “imminent natural death becomes foreseeable”. It doesn't go so far as to propose a specific timeline, but I think it gets more effectively at what a lot of people have said the intent of the reasonably foreseeable provision is.

It ensures we're talking about people who are approaching death but not just in the sense that death is reasonably foreseeable for all of us, but in a sense that death is very imminent.

I think this makes sense. Some may object to it on underlying philosophical grounds, but it certainly provides some of the clarity that if the committee weren't interested in providing in one direction, perhaps they wish to provide on the other side.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I will not be supporting this amendment. I believe the word “imminent” is flawed with regard to the Carter decision, and that's not consistent with the parameters around which the Supreme Court of Canada passed it on to the legislature to make a legislative framework.

It's very limiting. It definitely is different language from what we've proposed in the bill, which we feel in listening to the government's explanation—I feel, anyway—does strike the right balance. Adding the word imminent is too limiting and would not be consistent with Carter. Therefore, I cannot support it.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Monsieur Deltell.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Thank you, Mr. Chair.

I think that the proposal of my colleague Mr. Genuis is closest to the Quebec experience, which clearly indicates that care has to be provided at the end of life.

As for the government's initial proposal regarding the term “reasonably foreseeable”, we have all spent three weeks trying to explain it without really being able to find a clear definition of what they are taking about.

Mr. Genuis' amendment is appropriate, as it truly clarifies that an individual is at the end of their life when, “their imminent natural death has become foreseeable”. Having spoken to a few physicians who worked in Quebec under the regime of former Bill 52, An Act respecting end-of-life care, I believe this definition is necessary. In addition, that care must truly be provided at the end of life, and the prognosis must be made and all the processes undertaken at the end of life. That is why the term “imminent natural death”, as proposed by our colleague Mr. Genuis, is very fitting.

[The Chair, Liberal, Anthony Housefather]

Thank you, Mr. Deltell.

Would any other committee members like to speak to this?

I haven't heard any so I'm going to turn back to Mr. Genuis to close.

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

Thank you, Mr. Chair.

I note Mr. Fraser says that “imminent” is not in the court decision. Of course, neither is “reasonably foreseeable”. Both of us are proposing language that is not in the court decision, but which provides some further definition to the terminology in the court decision that is relatively vague, the terminology of “grievous” and “irremediable”.

I will note with respect to the constitutionality of this that Mr. Deltell quite ably pointed out that this aligns with the Quebec experience. In their extension the court did not apply the extension to Quebec, as I understand it, because they said Quebec has its own law in place already. One might reasonably infer that the court viewed the Quebec law as being constitutional.

If the Quebec law is constitutional, then surely it is at least within the range of options available to us to follow their model and include similar language, in this case the word “imminent”.

[The Chair, Liberal, Anthony Housefather]

Now we're voting on amendment CPC-15.

(Amendment negatived [See Minutes of Proceedings])

Next we move to another alternative, CPC-15.1.

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

To start with, I would like to amend it a little bit. This is an amendment that actually puts a definitive time frame on life expectancy. I'd like to amend it down to 30 days from six months.

[The Chair, Liberal, Anthony Housefather]

You'll propose it using the words “30 days” instead of “six months”?

[Ted Falk, Conservative, Provencher, MB]

Yes.

It would read then, “their natural death is expected within 30 days, taking into account all of their medical circumstances”.

We heard lots of testimony through our witnesses that they had a great deal of problem with the term “reasonably foreseeable”. They said that definition was not adequate in making a determination because none of us—as has been said here before, and as Ms. May so aptly pointed out—is getting out of here alive. We'll all die at some point, and that is very foreseeable.

[The Chair, Liberal, Anthony Housefather]

Hopefully she didn't mean this room, though.

[Ted Falk, Conservative, Provencher, MB]

I don't think that's what she meant at all.

[Murray Rankin, NDP, Victoria, BC]

I hope not.

[Ted Falk, Conservative, Provencher, MB]

Even in that case, if you're a follower of biblical literature, you know that there's an exception there as well at some point. Hopefully some of us are able to fall within that exception.

I think 30 days is reasonable. The intent of this motion is to make a defined statement that this is an end-of-life situation and it shouldn't be applied except in that particular situation, where it is an end-of-life environment that the individual find himself in and they don't want to go through the excruciating ordeal of those final 30 days.

[The Chair, Liberal, Anthony Housefather]

Ms. Khalid.