Evidence of meeting #16 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A video is available from Parliament.
9:40 a.m.
Chair
We're back to the principal motion, as amended, which would now read:
if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision.
Is there any further debate?
Mr. Casey wishes to speak.
9:40 a.m.
Liberal
Sean Casey Liberal Charlottetown, PE
I want to put the government's position on the record.
This amendment is well intentioned, but because the amendment is drafted in the conditional, it's incompatible with acceptable language for Criminal Code provisions. You may want to get the view of the officials on this.
The criminal law sets minimal standards for acceptable behaviour in society. Conditional circumstances are typically better addressed by medical practice regulation.
Also, uncertainty would be created. It's unclear if it places an obligation on the medical or the nurse practitioner to determine whether the person has difficulty communicating or what degree of difficulty would trigger the provision. If there's a desire to require additional communication technologies or resources for certain classes of persons, it should be left as a matter of medical practices to be determined by the provinces and medical regulators.
Bill C-14 already requires medical and nurse practitioners to provide medical assistance in dying with reasonable care and skill, according to any applicable provincial standards. This is sufficient to address the concern raised by the amendment, which is unnecessary in the government's view. Existing informed consent procedures require that a person understands the medical options available to them.
9:40 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you very much for your comments, Mr. Casey.
Are there any further comments by members of the committee?
Mr. McKinnon.
9:40 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
Could I suggest a subamendment to deal with the conditionality. I'm not sure if it truly deals with conditionality, but to change the word “if” to “when”.
9:40 a.m.
Liberal
The Chair Liberal Anthony Housefather
Once a subamendment is adopted, you can have another subamendment, but I'm not sure that this really.... Do want to put that forward as a subamendment?
9:40 a.m.
Liberal
Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC
I don't know if it helps. If it helps I do, and if it doesn't then why bother?
9:40 a.m.
Liberal
Colin Fraser Liberal West Nova, NS
My only difficulty would be that the word “when” would be presuming they may have one. It would add an extra element of uncertainty around the timing.
9:40 a.m.
Liberal
The Chair Liberal Anthony Housefather
I agree it doesn't help, but it's not my role to decide.
Do you want to put one forward, Mr. McKinnon?
9:40 a.m.
Liberal
9:40 a.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Is it possible to ask the officials if there's any language they can see that would deal with the conditionality problem, since I see Mr. Fraser and Mr. McKinnon would both like to support this amendment.
I have never practised criminal law, but it does seem to me that it doesn't impose the kind of conditionality that would create conflicts within the Criminal Code in understanding how to interpret the framework we're putting forward. Is it possible for me, in my position as a non-committee member, to ask an official if there's—
9:40 a.m.
Liberal
9:40 a.m.
Green
9:40 a.m.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I'm not sure there's any way to cure the conditionality, because in many patients this simply won't be an issue. This is a fact or a safeguard that would apply in some cases, but not in all cases. By it's very nature, I think it's conditional on the facts of the case. It may be entirely sensible from a health law point of view, but from a criminal law point of view, the committee has to ask who the obligation is on, and when it is on them. Is it on the physician, in order for them to feel confident that they will not be incurring criminal liability when they provide medical assistance in dying? How many steps do they have to take to ascertain whether this contingent circumstance exists or doesn't exist? If they simply make a reasonable guess about it, will someone have to challenge them on that afterwards?
Anything that is conditional in this context is inherently problematic from a criminal law point of view, unless you're very clear about....
It's stated in the objective. If this circumstance exists objectively in the world, it's not stated in terms of where the physician or the nurse practitioner believes this might reasonably be the case. We usually strive for that kind of clarity about subjective mental states in criminal law drafting.
9:45 a.m.
Liberal
The Chair Liberal Anthony Housefather
Thank you for the comments.
Ms. May, I'm going to ask you to close.
9:45 a.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Before closing, I'm wondering if there are other members of the committee who might entertain the notion that where a physician or nurse practitioner is of the opinion that the person has difficulty communicating, the physician or nurse practitioner shall take all necessary measures.
There's a willingness, clearly, on the part of both the Liberals on this committee and Conservatives on this committee to support this amendment if the language is right. I'm just taking in the advice from our officials and suggesting that if we use the language that's been used in previous paragraphs of subclause 3(3) on safeguards, and apply it to this condition—
9:45 a.m.
Liberal
The Chair Liberal Anthony Housefather
Ms. May, I'm sorry, I don't know if this is my role as chairman—I'm new at this—but if you go back to the beginning of the subclause 3(3) on safeguards, that's how it would read.
9:45 a.m.
Green
Elizabeth May Green Saanich—Gulf Islands, BC
Thank you for that, Mr. Chair. That's very helpful.
I would say that I think the concern raised by officials is dealt with, as you suggest, by the overarching context of subclause 3(3),which begins:
Before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, the medical practitioner or nurse practitioner must
What we're suggesting is that the medical practitioner or nurse practitioner has the obligation. Therefore, the conditionality implied in subparagraph 241.2(3)(b)(i) should be acceptable. I believe that the committee has accepted the subamendment, thanks to my friend, Mr. Falk. It would now read:
(i) if the person has difficulty communicating, take all necessary measures to provide a reliable means by which the person may understand the information that is provided to them and communicate their decision."
I hope that will be acceptable to members of this committee and will be passed. Thank you very much.
(Amendment as amended agreed to)
9:45 a.m.
Liberal
9:45 a.m.
Conservative
Garnett Genuis Conservative Sherwood Park—Fort Saskatchewan, AB
I would like to clarify that there was a earlier version of this. This is the version that has an (a) and (b), and goes on to a second page. Is everybody clear about the version of this that we're looking at?
9:45 a.m.
Liberal
The Chair Liberal Anthony Housefather
Mr. Genuis, is the version that you want to kick CPC-18 or CPC-18.1?
