Justice Committee on May 9th, 2016

[Ted Falk, Conservative, Provencher, MB]

I think Mr. Warawa has very much captured the essence of this motion.

I would have very much liked to withdraw this motion had the judicial oversight been accepted, which I think, actually, is more appropriate than ministerial oversight. But there needs to be some form of oversight.

There are several things we have to remember from the Carter case. First of all, one thing we don't talk about a lot but is recorded in the decision is that there needed to be a respect for the sanctity of life. So far I have not heard a lot of that here this evening—respect for the sanctity of life. We're just trying to make laws and conditions so that we can fast-track these applications just as quickly as we can, not providing proper safeguards and checks and balances. I'm concerned about that.

The Carter decision was also granted on an exceptional basis. It's not a new standard; it's not a new right. The Carter decision never said there was a right to physician-assisted suicide. It was being granted on an exceptional basis. We need to remember that. When that happens, there needs to be proper oversight.

This particular amendment isn't my preferred amendment, but in the absence of the better amendment, which was rejected by my colleagues on the other side, we have to have some kind of oversight. It's absolutely critical.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

The next one coming up is CPC-14, which is Mr. Viersen's.

Mr. Viersen, it is identical to CPC-8, which was defeated, so my suggestion is that this one not go forward because it was already defeated using exactly the same words. Agreed? Okay.

We're going to bypass that one and move to the incredibly complex NDP-4 amendment.

Now, it doesn't look to be incredibly complex. It's a very short amendment. However, we would not be able to put forward the following amendments if NDP-4 is adopted. We would no longer have them.

Amendment NDP-4 is totally identical to amendment BQ-3. If one is adopted, so is the other one, and if one is negatived, the other one is, as well. We will not continue with BQ-3 because it is identical to NDP-4.

[Luc Thériault, Bloc, Montcalm, QC]

Will I be able to take the floor, Mr. Chair?

[The Chair, Liberal, Anthony Housefather]

Yes, I will give you an opportunity to speak to amendment NDP-4, as it is identical to your amendment.

[Luc Thériault, Bloc, Montcalm, QC]

Okay.

[The Chair, Liberal, Anthony Housefather]

The following proposed amendments would not be allowed to go forward: Liberal-2, Green-2, Green-3, Liberal-3, CPC-14.1, Green-4, CPC-15, CPC-14.01, CPC-14.2, CPC-14.3, and CPC-15.1. The effect of the NDP motion, if it is adopted, would be to take out all the lines that these were proposing to amend.

I will now turn to Mr. Rankin to speak to NDP-4.

[Murray Rankin, NDP, Victoria, BC]

I want to say at the outset that, as you'll note, the objective of this is to delete the definition appearing between lines 20 and 35, in accordance with the recommendation of the Senate-House committee, which counselled very strongly that we not try to gild the lily, that we not try to change the language that was so carefully reached in the Supreme Court of Canada and undercut its effect, as I believe this section would do.

If I am unsuccessful in persuading the committee to do that, my counter, my fallback position, would be—I have it handwritten—that we simply delete in particular lines 31 to 35, which would take out the famous “reasonably foreseeable” clause, but my—

[The Chair, Liberal, Anthony Housefather]

There are other amendments that propose that and that will be heard going forward if this one fails.

[Murray Rankin, NDP, Victoria, BC]

Right, so my fallback would be to do that.

The reason that I believe this is really important—and I note that the Senate-House committee agreed—is that it's safest to simply leave the language to what the Supreme Court crafted in its unanimous decision. It therefore would be less likely that a future court would have to reinterpret their handiwork. We're opening up an awful lot of opportunities for more litigation by suffering people having to go to the Supreme Court to seek clarity on our handiwork. We're here to legislate, and we're creating more obstacles than we need to in order to be consistent with their decision.

It would remove the additional restrictions, which I must emphasize were nowhere to be found in the Supreme Court of Canada's decision. For example, instead of the word “incurable”, they used the word “irremediable” in the courts, for good reason. The patient was entitled, they said, to say that yes, their particular kind of cancer could be cured, but their particular kind of cancer would be so painful in the cure, and perhaps the prognosis of success was so limited, that they would have the ability to say no to that treatment if, in their autonomous judgment, they thought the cure was worse than the disease. They very explicitly didn't use that word, so why would we do so?

Secondly, “advanced state of irreversible decline in capability” is another phrase that comes out of nowhere. When I talk to doctors—and I've talked to many—they have no idea how it would be utilized.

Also, of course, there is the famous “reasonably foreseeable” clause that I won't bother reading. It's so problematic. We heard such an amount of testimony from people about this that I just don't understand why we would want to saddle future suffering people with the need to persuade a particular doctor or doctors or health practitioners that their natural death has become reasonably foreseeable. Once again, it's undercutting the victory of the people who argued successfully that they need not be at the end of life or have a death that's reasonably foreseeable naturally occurring.

For all those reasons, I want to go back and do what the special joint committee did, and that would be to delete this and leave the term to be defined in the common law, as we do with so many other parts of our law. Leave the words “grievous and irremediable” to be determined by jurisprudence going forward. If I'm unsuccessful in persuading people that this is the proper approach, then I would for sure wish to move the amendment that we remove “reasonably foreseeable”—at the very least.

[The Chair, Liberal, Anthony Housefather]

I understand, Mr. Rankin.

I will give the floor to Mr. Thériault, as his amendment is identical to Mr. Rankin's.

Go ahead, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Chair, we have talked a lot about vulnerable individuals today, but is there anything more vulnerable than a person with a degenerative medical condition or someone experiencing intolerable suffering? However, in order to prevail, that person would have to go to court. As Mr. Rankin pointed out, all the criteria established in this provision are confusing and subject to interpretation.

I have had a look at the Liberal amendments a bit further down, and I think they feel that subsection 241.2(2) of the bill—as is or nearly—is in line with the Carter decision. I would like someone to manage to convince me that paragraph 241.2(2)(d) belongs in this bill. The Minister of Justice's claim that Ms. Carter would have had access to medical assistance in dying under this provision leads me to say the same thing others have mentioned. The only way to interpret natural death becoming reasonably foreseeable is to base the interpretation on age discrimination, and that would be completely dismissed.

I previously said that, by wanting to clarify matters, we end up imposing obligations that run totally counter to the charter and to the Carter decision. So instead of saying nothing, the Liberals should put forth some arguments and try to convince me. I have read the amendments, and the Liberals are refusing to remove paragraph 241.2(2)(d). If this amendment gets defeated, I would at least like them to tell me why they want to keep this provision that has been dismissed by all the legal experts who followed the Carter case.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Mr. Thériault.

We will now move to the debate.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

Thank you very much for your comments, Mr. Thériault.

I'd like to hear from the department with regard to that issue on Ms. Carter, because I know a legislative explanation came out at the same time as the bill, and it provided some insight as to where the Minister of Justice and Minister of Health were coming from with regard to all of the medical circumstances that were at play.

I'd like to hear from the officials with regard to the point Mr. Thériault was making.

[Joanne Klineberg]

The ministers explained that the objective of the choice that was made was to enable people who are suffering while in decline on a trajectory towards death to have a peaceful method of dying.

That being the case, there are choices about how the legislature could describe or define with precision those circumstances. We know the U.S. states chose a model that is limited to individuals who are dying from a terminal disease. The decision the ministers made here was to make it available to all persons who are suffering while in decline on a trajectory towards death, the objective being to enable people to have a peaceful death if the dying process they would otherwise have would be a painful one, a prolonged one, a frightening one, or one that they might consider to be undignified.

That is, I think, the explanation for why this element was drafted in the way that it was, so that the entirety of the person's circumstances could be taken into account to determine if they were in fact on a trajectory towards death.

It's not intended to be limited to those people who are dying from a fatal disease. It can include individuals who are dying in the natural course. If they also happen to be in a state of decline and suffering unbearably, the decision was made that this manner of dying should be available to them as well.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I appreciate that explanation very much.

I think Carter was pretty clear that it anticipated Parliament actually acting on the decision, and anticipated that it would probably put in place a legislative framework, which we're here doing.

I note as well that we heard evidence, and I think it's pretty clear, that the only way to make sure this thing is charter-proof is to use the notwithstanding clause. Clearly the government's not going to be doing that.

Of course we want to anticipate future cases to make sure that this will be compliant with Carter and with the Charter of Rights. That's very important, and I believe the explanation is reasonable in that regard. We're not going to be able to make this charter-proof and I think the amendment therefore is not consistent with regard to meeting the aims described in order to respond to Carter.

For that reason, I would vote against the amendment.

[The Chair, Liberal, Anthony Housefather]

Mr. McKinnon.

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

Notwithstanding the observations on the other subclauses of this clause, subclause (c):

that illness, disease or disability or that state of decline causes them enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions that they consider acceptable; and

This is the heart of the Carter decision.

If we delete these lines, there's nothing left. Whether we delete (d), (a), or (b), we cannot delete (c). On that basis I vote against this.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there further discussion?

Welcome, Mr. Deltell.

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

Thank you very much, Mr. Chair.

Good evening, everyone.

I would propose to vote against our colleagues' amendment for the following reason.

Bill 52, passed by the Quebec National Assembly, clearly defines the issue and to whom it pertains. I remind you that the Quebec experience is based on six years of detailed and painstaking work under three different governments and three different premiers. I know what I'm talking about because I was there. I think that my colleague from the Bloc Québécois was also there for some of the work. He may have arrived a bit later, but he is still a former colleague from the National Assembly I salute.

Back then, in Quebec, we were careful to thoroughly define the issue in question to avoid the lack of clarity that kind of treatment could involve. We understand full well that the matter is extremely delicate, as we are literally talking about a life or death situation. Quebec's experience was very painstaking in terms of that. We still have concerns over some of the provisions, especially paragraph (d), lines 31 and 32, where it says, “their natural death has become reasonably foreseeable”.

I had an opportunity to say that this expression, which is actually very hard to remember, was overly vague in our opinion. In Quebec, we defined this issue clearly by referring to “end-of-life care”. We may be able to come back to this, but I wanted to review the situation in light of the Quebec experience. It's better to have clear guidelines instead of vague statements that may leave room for interpretation and even some rather unfortunate situations.

[The Chair, Liberal, Anthony Housefather]

Mr. Thériault, let me check whether any other committee members would like to intervene before I give you the floor.

Mr. Oliphant.

[Rob Oliphant, Liberal, Don Valley West, ON]

They gave me a sign.

[The Chair, Liberal, Anthony Housefather]

I've been allowing people to participate when they have motions that are on the floor, and I've been allowing non-members who put forward a motion, in this case Mr. Thériault, to intervene. I'm not usually recognizing anyone else.

[Rob Oliphant, Liberal, Don Valley West, ON]

If those are the rules of the committee, that's fine.

[The Chair, Liberal, Anthony Housefather]

Those are the rules.

However, out of deference, I'm happy to let you speak on this one point. Go ahead.