Justice Committee on May 10th, 2016

[The Chair, Liberal, Anthony Housefather]

Is there any further discussion or debate?

Not seeing any, Mr. Viersen, I'll give you a moment to close or to add anything.

[Arnold Viersen, Conservative, Peace River—Westlock, AB]

My concern for this bill in its entirety comes out of the fact that I do value our health care system here in Canada, and I do think allowing our health care professionals, or requiring them, to perform euthanasia or assisted suicide will undermine people's trust in the system. I do think that we have to do everything we can to ensure that people are not hesitant to go to the hospital in order to get other things other than assisted suicide dealt with. Most of my amendments come out of that desire.

[The Chair, Liberal, Anthony Housefather]

We'll move to a vote on CPC-20.

(Amendment negatived [See Minutes of Proceedings])

Now we come to the new NDP-4.1.

I would note that this is similar to things that will come up at CPC-23 and LIB-8 related to conscience.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

I was also going to note that Mr. Cooper and I think a Liberal amendment go to the same place. Our advice from legislative counsel was to introduce it here. That's why it's on the agenda where it is.

I would like to say by way of introduction that the first part that's proposed—4.1—

Would recognize that every individual is free to provide or refuse to provide a person with medical assistance in dying, or to aid a medical practitioner or nurse practitioner to provide a person such assistance in accordance with their conscience or religious beliefs.

You will note that in the second part, a person who is aiding a medical practitioner or nurse practitioner, would be a pharmacist, or a nurse, or others.

We were told by some witnesses that all of this was in fact unconstitutional. Our efforts in the committee are to ensure that conscience is protected, because it was said that this was a provincial responsibility, and it would be worked out by the colleges of the various self-governing professional organizations. That is why it's worded as it is. It has recognized that. It's for greater certainty in 4.2, because I acknowledged that there are constitutional issues with this, but because we have heard so much about conscience during our deliberations, this is my effort to try to capture that issue, albeit in federal law.

I recognizes that a person is able to refuse to provide services, which is what we heard about primarily during our hearings, but also that person is free to provide the service if, for example, their conscience requires them to relieve suffering, notwithstanding the fact they may work in an institution where medical assistance in dying is not permitted. It covers both scenarios, and both religious and conscience reasons.

The second part, Mr. Chair, 4.2, is essentially identical to the wording of subsection 3(1) of the Civil Marriage Act, except that I've not gone so far as to say “institutions will able to avail themselves of these protections”. I don't think that institutions have consciences. Those are the reasons for my making this amendment for the committee's consideration.

[The Chair, Liberal, Anthony Housefather]

I have a question. Are you sure about this, Mr. Rankin, because this provision comes right after the subsection dealing with someone being unable to sign and before the subsection dealing with independent witnesses? Is this really the place you mean to insert this?

[Murray Rankin, NDP, Victoria, BC]

I am absolutely agnostic, using religious terms where this fits in our deliberations. I am acting on the advice of legislative counsel. They suggested that it appear here. It is of no material importance—

[The Chair, Liberal, Anthony Housefather]

You're agnostic as to your conscience—

[Murray Rankin, NDP, Victoria, BC]

That's right, or my—

[The Chair, Liberal, Anthony Housefather]

Excellent.

It's proposed here. Is there any debate?

Mr. Nicholson, then Mr. Cooper.

[Rob Nicholson, Conservative, Niagara Falls, ON]

I'd like to ask a question of the departmental officials. I realize there are split jurisdictions, but what this is trying to do is protect those individuals who do not want to participate in this, and for the greater certainty section, here it says that no individual shall be deprived of any benefits subject...under any law of the Parliament of Canada by reason of the fact that they are not participating.

Does this leave a person open then to sanctions at the provincial level? Since these are professions that are regulated by the provinces, could they be open to sanctions at that level?

[Joanne Klineberg]

I think with respect to the proposed new subsection 4.1, there is something of a danger that a provincial law might be passed that requires conduct that might amount to aiding a medical practitioner. Such a law might be found to be constitutional if it were challenged under the charter, and if so the danger is that medical professionals might be mislead by a provision like 4.1. They might feel that it gives them some right to refuse to do something, when legally and constitutionally it couldn't be a provision in the Criminal Code that protects them from having to comply with an otherwise valid provincial or territorial law.

[Rob Nicholson, Conservative, Niagara Falls, ON]

How could we word this? Is there any wording we could alter to ensure the individual is not then misled and is open to sanctions at the provincial level?

[Joanne Klineberg]

The statement the minister has made, both ministers in fact on a number of occasions, is that nothing in the criminal legislation compels any medical practitioner to do anything. From a strict constitutional or legal point of view, that might really be as far as Parliament can go in expressing the impact of its legislation on the affairs of medical practitioners.

[The Chair, Liberal, Anthony Housefather]

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I really appreciate the intention of both of the suggested amendments to deal with conscience rights. We certainly heard evidence from the witnesses regarding the fact that this should be clearly stated for greater certainty. I agree with that.

In my later amendment, LIB-8 on page 94, there's some different wording that I would like to use to describe both providing or assisting in medical assistance in dying. That would capture a greater number of people and ensure that they are not compelled to participate in any fashion in providing or assisting in medical assistance in dying.

I believe, with regard to what was just stated by the officials, that is probably correct and I would be worried that we would have unintended consequences, ending up with a constitutional problem, legislating in a provincial jurisdiction and creating a conflict there.

With regard to Mr. Rankin's amendment, which I think is noble, I would prefer the wording that I have in LIB-8 on page 94 in a subamendment that I'll be proposing.

[The Chair, Liberal, Anthony Housefather]

Could you just read it, please?

[Colin Fraser, Liberal, West Nova, NS]

The wording I would like to see would be, “For greater certainty, nothing in this section compels a person to provide or assist in medical assistance in dying”. I would remove the “directly or indirectly”. I don't think that adds anything except confusion, but the word “assist” covers a larger number of people and is intended to ensure that people are clear that they are not compelled by anything in this law to provide or assist with medical assistance in dying.

That would keep away from the potential constitutional problem and make it clear that conscience rights will be respected by this law.

[The Chair, Liberal, Anthony Housefather]

Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

I certainly appreciate Mr. Rankin's amendment. I will be supporting it. I proposed an amendment that is more expansive than Mr. Rankin's, but Mr. Rankin's amendment is a step in the right direction and merits support.

I do have some concern, to the point that Mr. Fraser made, that it may be too narrow in terms of whom it protects. It only refers to a medical practitioner and a nurse practitioner, but it doesn't, for example, extend to pharmacists who may have a conscience objection, or other health care providers who may be involved in one way or another in administering physician-assisted dying.

I am wondering if Mr. Rankin might be open to an amendment to change his amendment along the lines of the wording found in my amendment CPC-23, excluding in terms of institutions, which would not be included because I understand that his amendment would not include that?

[Murray Rankin, NDP, Victoria, BC]

Thank you, and I appreciate the spirit in which we're having this debate.

I'm agreeing with Mr. Cooper, in that although I was attracted to Mr. Fraser's amendment, I'm concerned that it doesn't go far enough.

I prefer Mr. Cooper's suggested language, which is on page 91, namely the phrase “direct or indirect medical assistance in dying”. I'm worried, Mr. Fraser, about people like pharmacists who may not be considered to be assisting. They may have provided the medication long ago and, therefore, they may not at the time be seen as under the protection.

It's only a matter of technical drafting that we're debating here. We agree with the principles. I agree with Mr. Fraser and with the fact that we can only deal with federal laws, and I appreciate that uncertainty. I don't think the fact the ministers made a statement is of any relevance at all, but I do agree that we can only deal with federal jurisdiction, obviously, so there is a problem that has been properly flagged.

Regarding “direct or indirect”, or the wording on page 91, would it make sense for the three of us to try to put our heads together?

[The Chair, Liberal, Anthony Housefather]

Do you want to suspend for a couple of seconds to let the three of you try to work it out?

[Murray Rankin, NDP, Victoria, BC]

Yes.

[The Chair, Liberal, Anthony Housefather]

Sure, let's do that.

[The Chair, Liberal, Anthony Housefather]

We'll resume. We have five minutes left. We've agreed that the different groups will work, and we'll come back to this subject at our meeting this afternoon. In the meantime, since this is probably not the location in the bill where we would insert this clause, we can move ahead with the other amendments or at least do a couple more.

Mr. Rankin, do you agree to stand it for the moment?

(Amendment allowed to stand)

[Murray Rankin, NDP, Victoria, BC]

That was helpful. Thank you.