Justice Committee on May 9th, 2016

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

I'm speaking in favour of the amendment. I wanted the committee to be clear about a case that the Court of Queen's Bench of Manitoba ruled on last Friday. This is the case of a woman referred to as patient No. 2, the second case under the four-month interim regime from the Supreme Court of Canada, where each province defined its own system with a pre-authorization by a judge.

The judge heard the case of a woman in her fifties who has ALS and has an expectation of living three to five years. She has a disease that is irremediable. She has suffering that is intolerable to her. However, one would not be able to say her death will take place in the reasonably foreseeable future, nor is she necessarily in a decline.

One can argue that her status is very similar to Kay Carter's. However, she is about 30 years younger. I have heard it argued that Kay Carter was elderly. Therefore, her death was foreseeable in the future. This would not be the case of patient No. 2. The judge in this case was taking her leave from the Carter decision and applying it in this case.

If this amendment is not passed, would this patient be allowed a dignified death if Bill C-14 passes unamended? That would be my concern, and that is why I speak in favour of the amendment.

It's important for the committee to be clear that there are cases in which people may be seeking death right now, before this bill is passed, because they fear they would be ineligible to receive the right granted under the Carter case at this time.

That is a grave concern I have. I believe this case should be strongly considered by a judge who has read the law well and is concerned about the nature of this bill. That's all I have to say.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Out of courtesy, in the same way I recognized Mr. Oliphant, I will now recognize Mr. Casey to respond.

Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

I just want to give you the government's position with respect to this amendment. The government opposes this amendment. There is no certainty or clarity around what is meant by “grievous and irremediable medical condition”. The Canadian Medical Association has stated that there is no shared meaning of what constitutes “grievous condition”.

If practitioners interpret it broadly, for example to apply to persons with permanent physical disabilities who are otherwise in good health or persons who have just been diagnosed with a degenerative disease, it could increase the risks posed by medical assistance in dying to vulnerable persons, could contribute to the stigmatization of the quality of lives of persons with disabilities, and potentially undermine suicide prevention.

This amendment is also fundamentally contrary to the government's policy choices as reflected in Bill C-14. As introduced, Bill C-14 contains the clarity that is needed to give confidence to medical professionals to undertake what is otherwise a criminal act.

Thank you, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. McKinnon.

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

I feel that the debate at this point is largely around (d), and whether or not that should be retained. But this amendment is about a whole whack of things, right?

[The Chair, Liberal, Anthony Housefather]

We'd need to strike all four portions.

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

Correct. If we strike (c), the requirement for enduring intolerable suffering exists nowhere in this act. It's not part of the eligibility for physician-assisted dying, nor is it part of the definition of what a “grievous and irremediable condition” is. For that alone, irrespective of the arguments around (d), I think we have to defeat this amendment.

[The Chair, Liberal, Anthony Housefather]

Thank you very much,

I will give the floor to Mr. Thériault, and we will wrap up with Mr. Rankin.

Go ahead, Mr. Thériault.

[Luc Thériault, Bloc, Montcalm, QC]

Mr. Chair, I think that our debate concerns one of the crucial points, and one of the conceptual and legal nodes, of this bill.

I would personally be very comfortable with a subamendment to eliminate paragraph 241.1(2)(d), while keeping the rest, so as to go along with Mr. McKinnon's arguments.

[The Chair, Liberal, Anthony Housefather]

There are already amendments that focus solely on paragraph 241.1(2)(d).

[Luc Thériault, Bloc, Montcalm, QC]

They eliminate paragraph 241.1(2)(d) in its entirety.

[The Chair, Liberal, Anthony Housefather]

Yes.

[Luc Thériault, Bloc, Montcalm, QC]

In that case, I have something to say.

It is very clear that paragraph 241.1(2)(d) can definitely not meet the Supreme Court's requirements, as it creates age-based discrimination. My earlier question was not answered. Under paragraph 241.1(2)(d), how can it be interpreted that Kay Carter could have had access to medical assistance in dying?

Moreover, in Quebec, medical assistance in dying is part of a continuum of end-of-life care in the final stage. People who want to have access to assisted suicide must currently go on a hunger strike to obtain it. It would absolutely go against the most basic humanitarian considerations to allow that to happen again. So it seems essential to me that paragraph 241.1(2)(d) disappear completely.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin, go ahead.

[Murray Rankin, NDP, Victoria, BC]

I agree with Mr. McKinnon. This really is a critical part of our exercise. Of course, NDP-2 would have dealt with the language that you rightly say would be eliminated, but that is a matter of style. It is critically important that it be included, but we had that forward as another way of doing it.

I would like to note and to thank Mr. Oliphant for coming. He was a superb co-chair of the Senate-House committee, and that was the committee that recommended we don't define it, for reasons that are articulated in that report, which I won't repeat.

I would like to repeat, however, that Mr. Arvay, the counsel; Mr. Ménard, from the Quebec bar association; and the Canadian Bar Association have all pointed out the problems with this bill.

I would like to read what the Canadian Bar Association wrote to the Senate on May 4:

The CBA Working Group does not believe that this definition is consistent with the criteria established by the SCC in Carter.

Nor do I. Nor does Mr. Arvay. Nor does Mr. Ménard. We have had no independent legal opinion. The Department of Justice's perspective was, with great respect, advanced unsuccessfully in the court. Now we have amendments that would undercut, in the name of certainty. Mr. Casey tells us that somehow this would not provide clarity.

With all due respect, I heard two doctors on Cross Country Checkup, one saying Kay Carter would be covered, one saying she wouldn't. Is that clear? We have “reasonably foreseeable” language, which has been the subject of ridicule across the country, and to suggest that this provides clarity is simply inappropriate.

Last, to say that this would do harm will be contrary to the policy choices of the government in Bill C-14. I would like to remind the committee why we are here. We are here to put meat on the bones of a unanimous Supreme Court of Canada decision. This does not do that. It undercuts that. With great respect, I simply disagree, and I hope people will be persuaded that we have a job to do. We have to apply the law of the land, and this does not do it. The Canadian Bar doesn't think so. The counsel who argued it doesn't think so. Mr. Ménard doesn't think so. I hope you will agree that it can't be done. In the name of clarity, it certainly doesn't do the job.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

(Amendment negatived [See Minutes of Proceedings])

Next, we have BQ-3.

Amendment BQ-3 is identical to amendment NDP-4. With amendment NDP-4 being negatived, amendment BQ-3 is also negatived.

[Luc Thériault, Bloc, Montcalm, QC]

I wanted to speak first, Mr. Chair.

[The Chair, Liberal, Anthony Housefather]

I still acted as if you were the one who proposed it.

[Luc Thériault, Bloc, Montcalm, QC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

I will now move to the next amendment.

We have amendment 14.01, which I think is identical in some ways to some of the ones that have been defeated, but I am going to allow—

[Ted Falk, Conservative, Provencher, MB]

I withdraw it.

[The Chair, Liberal, Anthony Housefather]

Next, we move to Mr. Fraser, LIB-2.

Mr. Fraser, go ahead.

[Colin Fraser, Liberal, West Nova, NS]

We heard testimony regarding.... Perhaps it was Mr. Falk who asked the question about adding the word “and” after each clause, but that wouldn't normally be done. As far as I understand, it is a stylistic point. However, I think this would satisfy that concern, which some have mentioned. It is just for greater clarity, to add a condition “if they meet all of the following criteria”, which is similar to proposed subsection 241.2(1). It is the same language, so it is consistent.

It would read, “A person has a grievous and irremediable medical condition if they meet all of the following criteria”.

Then, there are four: (a), (b), (c), and (d).

I think this just makes it more certain that all four need to be met in order to meet the criteria of “grievous and irremediable medical condition”.

[The Chair, Liberal, Anthony Housefather]

Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Agreed.