Justice Committee on May 10th, 2016

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

I'd point out once again that part (a) of this amendment is already hard-wired into our safeguards. To receive medical assistance in dying, an individual first has to request it. They can't be compelled to do that, and they have an explicit entitlement to confirm that before medical assistance in dying is rendered, so I don't see that (a) provides any useful capability, any useful protection, and of course (b), as we have heard, is probably outside our jurisdiction, so I shall vote against this.

[The Chair, Liberal, Anthony Housefather]

Mr. Nicholson.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Going back to the example of legal advice, if you don't want to provide legal advice or take on a client, Mr. Bittle, you indicated that within the legal profession we can and should refer them to somebody else, but this is something very different here. These are people who have conscientious objections to what is going on, and we've already included, directly or indirectly, a person's ability on the grounds of conscience not to have to participate in this.

It is a reasonable expansion of that to say you're not under an obligation to have to refer a patient to somebody who is going to do that for them. If on conscience grounds the individual does not want to get involved with this, they don't have to go the next step of getting the kind of assistance that the patient is looking for. This is just a reasonable expansion of what's already part of this.

[The Chair, Liberal, Anthony Housefather]

Mr. Bittle, do you want to respond?

[Chris Bittle, Liberal, St. Catharines, ON]

I see where this amendment is coming from, and I appreciate this, but this is a solution without a problem. We asked individuals, asked witnesses, and heard evidence to the fact that there is no issue among the colleges and the associations with respect to physicians exercising conscience rights across the province. There's nothing in this bill that requires an individual to do something. I believe this is outside the scope. I don't think it's an appropriate time for the federal government to be legislating the affairs of the colleges of physicians and surgeons across the country.

[The Chair, Liberal, Anthony Housefather]

We'll go back to Mr. Genuis to wrap up the arguments on this one.

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

I have three quick points. They claim that this is a solution in search of a problem. Dr. Nancy Naylor in Strathroy, Ontario, has spoken out about the fact that she is leaving her palliative care practice because of the effect of the Ontario College of Physicians and Surgeons policy with respect to referral and this legislation. I doubt there are that many palliative care physicians in Strathroy, Ontario, so those who are concerned about access should take the opportunity to solve that problem very simply seriously enough.

In terms of the jurisdictional question, I would view this as an exception to an exemption in the Criminal Code, and it is legitimate for the federal government to put conditions on that exception.

To respond to Mr. Bittle's comparison to lawyers, a better analogy is if someone comes to you in your law practice and says they want to commit tax fraud. If you were to say you didn't do that, but you'd refer them to a lawyer who is willing to, that is a better analogy because you'd be willing to refer someone to a service you can't provide. I don't think you would refer someone to a service that you objected to ethically. That is the correct analogy, sir.

[The Chair, Liberal, Anthony Housefather]

Before we vote, I want to explain why I'm allowing this amendment. Previously I disallowed Mr. Viersen's because I thought it was undebatable that the subject of the amendment was completely outside the scope of federal powers. In this case, while I doubt that it's within the scope of federal powers, I do not dispute that there's a legitimate argument that it could be, and as a result I'm allowing this to go forward, in my usual practice of letting the committee decide, rather than just me.

I just wanted to explain this, because obviously somebody could consider it a contradiction that they said this isn't within federal power and I'm still allowing it to go forward. I just wanted to explain it.

Now we'll move to a vote on amendment CPC-24.

(Amendment negatived [See Minutes of Proceedings])

Amendment CPC-24.1 is dropped.

Amendment Lib-8 is dropped because amendment NDP-4.1 was adopted.

Then we have amendment CPC-24.2, which I think is exactly the same on the medical practitioners.

We move, then, to amendment CPC-25.

Mr. Falk, will you put that forward for Mr. Kmiec?

[Ted Falk, Conservative, Provencher, MB]

I will so move.

I don't think Mr. Kmiec is here. Mr. Viersen will be speaking for him.

[The Chair, Liberal, Anthony Housefather]

Mr. Viersen.

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

This would amend the bill to read “of an indictable offence and liable to imprisonment for life without eligibility for parole until they have served 10 years of their sentence”.

This is a simple amendment for the simple reason that wilfully ignoring the law and killing someone without following the necessary precautions and guidelines is second-degree murder. We cannot allow gross negligence to go unpunished, and there must be sufficient deterrence to emphasize the importance of these guidelines. This is a human life we are dealing with, and it should not be trifled with.

[The Chair, Liberal, Anthony Housefather]

Thank you for your succinctness.

Mr. Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

I think this is excessive. This is creating a lesser offence. The offences of murder and manslaughter still exist, and you're creating imprisonment without life. I don't think it's appropriate in this particular case. I think the safeguards are there for a reason.

I wonder whether I can get the opinions of the department on this.

[The Chair, Liberal, Anthony Housefather]

Ms. Klineberg.

[Joanne Klineberg]

I think the idea behind this offence was to give the possibility of a lesser offence being charged in cases in which breach of the safeguards was perhaps not as serious as it might be in other cases. It is true that the amendment would cause the penalty for this offence to match the penalty for murder. In that sense, it wouldn't be a lesser offence; it would be an offence of the same seriousness as murder.

One of the concerns that motivated the creation of this offence is that in jurisdictions that have these laws, breach of safeguards is sometimes detected, and yet there is very rarely any prosecution. That might be, it's surmised, because the choice is either to prosecute for the offence of murder or not to prosecute at all. The idea is to create a middle option, so that there can be a prosecution for an offence that more closely matches the wrongdoing.

The other point I would make, just from a pure criminal law perspective, is that medical assistance in dying might be provided by way of medically assisted suicide, and aiding a person to die by suicide is a less serious offence than murder. It carries a maximum punishment of 14 years and no minimum. There might be a strange impact on a physician who had aided someone to die by suicide whereby they could face a higher penalty for breach of the safeguards than they could have if they had been prosecuted for the offence of aiding a person to die by suicide.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Is there any further debate? If not, Mr. Viersen, I'll give it back to you to close.

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

We are talking about the taking of life. That is the number one thing we're dealing with in this new bill. I think we need to ensure that we have consistency in ensuring that if you take a human life without the exemptions, you pay. Those who do the crime do the time, essentially. That's probably the impetus for this amendment.

I would like to point out that in Belgium they have significant stats concerning people who are being euthanized without explicit consent. They have statistics on this. You'd think it would be a hidden kind of thing, but no, they actual have stats on it—the proper documentation not being filled out, and those kinds of things.

We need to ensure that in Canada no one is put to death without consenting to their death. One person whom that happens to is one too many. How many are we okay with? That is the question. In Belgium last year, 1,000 people were put to death without explicit consent. If that happens here in Canada, I would expect that there would be a sentence similar to that for manslaughter or second-degree murder.

[The Chair, Liberal, Anthony Housefather]

I just want to say that we had no testimony to the effect of 1,000 people in Belgium being put to death that way. I just want to caution that I'm not sure that is entirely accurate, but I understand the point you're making. You're trying to make the point that we should be very cautious.

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

Yes.

[The Chair, Liberal, Anthony Housefather]

So now we will move to a vote on CPC-25 from Mr. Kmiec.

(Amendment negatived [See Minutes of Proceedings])

We now move to PV-11.

Ms. May.

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

Thank you, Mr. Chair.

This is an amendment based on recommendations that the committee heard from a couple of witnesses from the Barreau du Québec as well as from Peter Hogg. He was not at this committee. He testified at the Special Joint Committee on Physician-Assisted Dying back in January. Peter Hogg is, of course, one of Canada's leading constitutional law experts.

To save time, I won't read out all three clauses. You have them in front of you. The essence of this is to ensure that there are provisions to allow equivalency in recognizing the federal law for medically-assisted death with provincial laws.

I'll just quote from Professor Hogg at this point:

The advantage of doing that is that it would avoid overlapping legislation. Also, if you don't do something like that, issues of conflict between the federal and provincial law will be quite complicated, and they will be resolved by the rule of federal paramountcy. That would be a bad situation. I think it can be resolved by a so-called equivalence provision.

What I've drafted is based on many precedents in other federal laws where one can assess that the provincial law under consideration is sufficiently equivalent to what's being put in place federally that we'll avoid federal-provincial conflict of jurisdiction in this area. I hope you'll consider this amendment. Thank you.

[The Chair, Liberal, Anthony Housefather]

Monsieur Bittle.

[Chris Bittle, Liberal, St. Catharines, ON]

I was wondering if I could get analysis of this section from the department.

[Joanne Klineberg]

We have a few comments we can make, for the committee's interest.

First, it's not entirely clear how equivalency would in effect be assessed in this particular context. For instance, if it were assessed fairly liberally, in Quebec, where it's not required that there be an independent witnesses to the person's written request, the federal criminal law would not apply. Then there might end up being a situation of differential standards and differential safeguards across the country.

Another issue with respect to this is that it might be for the committee's consideration that the Minister of Justice would be better placed than the Minister of Health to determine when a provincial law is equivalent to the federal Criminal Code.

A technical issue that we've been informed of by our legislative counsel with respect to the amendment is that it doesn't entirely accomplish its intended effect. It creates a power for the Governor in Council to order that provisions of the criminal law would not apply in a particular province, but it does not incorporate that notion into the exemptions themselves. The exemptions still require physicians and nurse practitioners to comply with section 241.2 of the Criminal Code. Wording in the order of “or to comply with a provincial law that has been found to be equivalent” would also have to be incorporated into the exemptions in order for the exemptions not to require compliance with the criminal law.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. May.