Justice Committee on May 10th, 2016

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

I appreciate, as ever, the advice from officials, and Professor Peter Hogg is someone who wrote the book on constitutional law, literally. Even when I was back at Dalhousie law school in 1980, we were using Peter Hogg's text on issue of paramountcy, conflict of laws, and federal–provincial jurisdiction.

The recommendation that the Governor in Council may act is not a decision being made by the Minister of Health. The Minister of Health is making a recommendation. The decision to accept a provincial set of laws as equivalent is one that would be made by cabinet as a whole, with the inclusion of advice from the Minister of Justice. The concern about how one would, in effect, determine whether it was sufficiently equivalent is one that would engage the cabinet as a whole and be based on the key sections of this act the officials are concerned about.

I think there are enough safeguards in this amendment, as drafted, to ensure that cabinet will make a determination that's clear as to whether or not a provincial set of measures are sufficiently equivalent to allow the federal government's actions to exempt a province from the federal law if the provincial law is sufficient.

We certainly have many agreements of this type in other areas of law. I understand the Criminal Code is different. I accept that, but I think the Governor in Council will be cautious in stepping back and allowing a provincial law to stand. Out of necessity—as there is in the case of the Fisheries Act, or in numerous acts where the federal government determines that provincial legislation is sufficiently equivalent to step back—there would be a negotiated agreement between the two levels of government.

[The Chair, Liberal, Anthony Housefather]

I want to be as flexible as possible. My understanding is that there's a second issue with respect to the amendment, which is that we would also need to modify proposed sections 227 and 241 to then read that it would not be an offence to do medical assistance in dying, provided that it was in accordance with this section, or in accordance with the laws of the provinces or territories, where a Governor in Council....

My presumption is that if we pass this, we would have to go back and make sure we did that. I want to allow you, in principle, to consider things, so we can be flexible enough, if it's adopted, to go back, find the right sections, and do that.

Is there any other debate?

Not hearing any, do you want to finish on any principal point?

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

I think, Mr. Chair, that should this pass, I'm certainly open to finding other sections that need fixing, but let's not put the cart before an unlikely horse.

[The Chair, Liberal, Anthony Housefather]

Fair enough.

We're going to move to the vote on PV-11.

(Amendment negatived [See Minutes of Proceedings])

We will then go to CPC-25.1. It's new, so let me look at it.

Mr. Viersen, I'm sorry that I keep having these issues with the amendments that only you seem to put forward, but there's a real issue of receivability again on this amendment, with respect to the scope and the intention of requiring a court of appeal to rule first.

To be flexible, why don't I let you at least argue your amendment? If you could try to explain to me why you believe it's receivable, I'll listen to you.

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

Thank you, Mr. Chair, for your graciousness. I guess it's probably part of being new here that this whole inadmissibility thing is coming up more often, but I do thank you for your consideration regardless.

This amendment came from...as I went through the bill, there seemed to be no way for an outside person to say.... This is to prevent doctor shopping, essentially. If we have someone who is depressed and wants to die, my concern is that if a doctor said, “No, you're just depressed, we need to get you some help”, the person can move away from that doctor and move to the next doctor, say, “Can you provide me with assisted suicide?”, and find two other doctors. That first doctor may be sitting there, wringing his hands, and saying, “This person's just depressed. We need to get them help.” This would give the first doctor the ability to put a stop to that particular case and to say, “Hey, I don't think we're looking at all the information. Can we go before a judge to see if this is where I can present, perhaps, in a different setting?” That's what this comes out of.

We might lose one life without consent, that's what I'm trying to go after.

[The Chair, Liberal, Anthony Housefather]

I certainly understand substantively the principle you're trying to raise.

I'm still forced to rule that this is beyond the scope of the bill and is not receivable. There's no doubt in my mind. Despite how flexible I want to be, and I'm always erring on the side of....

I'm sorry, Mr. Viersen. The next time, if you want some help, I'll be happy to work with you on some of them beforehand.

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

The timing of it was very rushed. It was Wednesday evening, and they said we had to have amendments in by five o'clock tomorrow.

[The Chair, Liberal, Anthony Housefather]

I totally understand.

At this point, we have gone through all the amendments on clause 3. Now we will have a vote on clause 3 as amended, meaning all the amendments we have adopted so far in clause 3 would be incorporated as part of clause 3.

Is everybody good with moving forward with that? Is there any debate on clause 3 as amended?

(Clause 3 as amended agreed to [See Minutes of Proceedings])

We now move to clause 4.

[Colin Fraser, Liberal, West Nova, NS]

Mr. Chair, now that we're moving on to a different clause, I'm wondering if it would be a good time to take a five-minute break.

[The Chair, Liberal, Anthony Housefather]

Absolutely.

Is that okay with everyone, that we take a five-minute health break?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

The meeting is suspended for five minutes.

[The Chair, Liberal, Anthony Housefather]

We are resuming the meeting.

(On clause 4)

[The Chair, Liberal, Anthony Housefather]

We will now move to clause 4.

We're now moving to amendment CPC-26 in clause 4. However, this is one of the ones tied to the whole licensee scheme that was already ruled unreceivable. Amendment CPC-26 is part of that whole process and is thus not receivable.

That brings us to amendment CPC-26.1.

Mr. Falk, is this one of those again concerning the nurse practitioner?

[Ted Falk, Conservative, Provencher, MB]

Yes.

[The Chair, Liberal, Anthony Housefather]

So is this one we'll skip over?

[Ted Falk, Conservative, Provencher, MB]

Yes, unless you would like me to explain why.

[The Chair, Liberal, Anthony Housefather]

If you feel that you want to repeat the same thing again, you're more than welcome, but I think we can all deem that we heard it and appreciated it very much.

[Iqra Khalid, Liberal, Mississauga—Erin Mills, ON]

If I may, I would really like to hear it again.

[Ted Falk, Conservative, Provencher, MB]

It's okay; we'll move on. I want to make sure we get through our agenda.

[The Chair, Liberal, Anthony Housefather]

I do want to say that you were incredibly eloquent when you presented it this morning.

I think amendment CPC-26.2 is not related to that matter. It's over to you, Mr. Falk.

[Ted Falk, Conservative, Provencher, MB]

Thank you very much, Mr. Chair.

It's a very simple change. It's changing the word “may” to “shall”; we're insisting that the Minister of Health “shall” make regulations corresponding to this bill.

I don't know that it needs more explanation than that.

[The Chair, Liberal, Anthony Housefather]

No. I think that's pretty clear.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

I have a concern regarding the discretionary ability of the minister, and I'd like to hear the department or the officials comment on the change from “may” to “shall.”

[Joanne Klineberg]

What we're told is that the use of a mandatory type of language is not typical for regulation-making powers.

Other concerns with respect to that kind of language relate to what mechanism for enforceability there would be, for instance, if those regulations were not made. Within what period of time must they be made?

It's all those questions surrounding how you would enforce a failure on the part of the minister to undertake these obligations, when the language becomes mandatory. There's no mechanism proposed for the timelines and enforceability, which is why they tend to be expressed in the permissive rather than the mandatory.