Justice Committee on Nov. 23rd, 2020

[Chris Lewis, Conservative, Essex, ON]

Thank you Madam Chair. I appreciate that.

In recognition of time, we're now past the time of 8:30 that this meeting was scheduled to go to. With respect to our government assistants and officials, I am asking that this committee be adjourned until tomorrow at 11 a.m. I'd like a recorded vote, please.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Mr. Lewis, your motion has a condition to it and, therefore, is debatable, unless you'd like to change the wording of your motion.

[Chris Lewis, Conservative, Essex, ON]

If perhaps I could understand what the portion is that's debatable, I would certainly change it. I just need to know the verbiage.

[The Chair, Liberal, Iqra Khalid]

It's the 11 a.m., I believe. The language you're looking for is minus the when we're meeting next.

[Chris Lewis, Conservative, Essex, ON]

I understand. Thank you for the clarification.

Minus the when we're meeting next, I would ask that this committee adjourn the meeting.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Madam Clerk, could you please record the vote?

(Motion negatived: nays 7; yeas 4)

Thank you, Madam Clerk.

The meeting is not adjourned. We will continue with CPC-7.

Mr. Moore, would you like to move it and speak to it?

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I'd like to move CPC-7. To be clear, I am moving it and I am speaking only for myself when I speak with regard to CPC-7.

I'm sure that we've all read the legislation. In Bill C-7—and a number of people have consulted with some individuals on it—there doesn't seem to be clarity around when the 90-day reflection period begins. It's incumbent upon us to have certainty in our legislation. We've chosen vagueness when it comes to reasonable foreseeability. There are some terms that are certain, such as the 90-day reflection period. We're saying that it's 90 days. We just defeated an amendment that would have made it 120 days.

CPC-7 amends Bill C-7 to read:

ensure that there are at least 90 clear days between the day on which the request under paragraph (b) was signed by or on behalf of the person and the day on which medical assistance in dying is provided to them or — if the assessments have been completed and they and the medical practitioner or nurse practitioner referred to in paragraph (e) are both of the opinion that the loss of the person’s capacity to provide consent to receive medical assistance in dying is imminent — any shorter period that the first medical practitioner or nurse practitioner considers appropriate in the circumstances;

That last part is relevant to our previous debate in that the 90-day period can be shortened. However, what's not clear in Bill C-7 is when the 90-day period starts. This particular amendment provides that certainty.

This is important because, as has been mentioned, we're dealing with decisions around life and death. We're dealing with something where doctors, nurses, health care providers, family members and individuals who may be considering MAID need to have certainty around the process.

Part of the certainty around the process involves safeguards. The government, in Bill C-14, included a number of safeguards. Some of those safeguards involved the period of reflection. The period of reflection enables an individual, upon requesting MAID.... It gives the person time to change his or her mind, to consider further circumstances, to have a period of reflection. That period in Bill C-14 was 10 days. That was seen as appropriate.

We have to remember that one of the requirements in Bill C-14 was that death had to be reasonably foreseeable. Following the Truchon decision—this was a Quebec Superior Court decision—we argued that the government at the time should appeal the decision in order to provide more certainty around the law. Normally, especially with a new law such as Bill C-14, it's incumbent upon the Attorney General and the government to defend its legislation. We argued that.... There I am, using the word “we” again, Madam Chair. I'll say that I argued. I argued that we should have appealed that decision, that this would have been the right thing to do. Instead, the government brought forward Bill C-7.

Bill C-7 includes a 90-day reflection period for individuals who are seeking MAID where death is not reasonably foreseeable. What Bill C-7 doesn't include is explicit and certain terminology that can be universally understood about when that 90 days starts. It's not clear whether it's when a person has been formally assessed for eligibility for MAID or when they're informed that they are eligible for MAID. It's quite unclear.

We want to provide that certainty, and we want to provide that it is at a moment in time when the person—and this should be the start point—has specifically requested MAID. That is when that point should begin. That point should only end, of course, after the full 90 days is complete. We had argued that 120 days would be more appropriate and that was defeated, so it's when the 90 days is complete.

I'm happy to move CPC-7, and I'm happy to answer any questions that committee members may have on this amendment.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

I have Mr. Virani next on the list.

Go ahead, Mr. Virani.

[Arif Virani, Liberal, Parkdale—High Park, ON]

Thank you, Madam Chair.

The upshot of this kind of an amendment would conflate the concepts of an assessment period and a reflection period.

An assessment period is a minimum safeguard that is meant to ensure there is enough time devoted to MAID assessments of persons whose death is not reasonably foreseeable, whereby the eligibility determination can be made only after the assessment is completed. We're trying to give enough time to make that assessment.

A reflection period is in contrast to that. What reflection does is it allows for a minimum period of time that would have to elapse after a person is found to be eligible. Its purpose is to give the person, who knows that they can obtain MAID to relieve their suffering, a brief pause to reconsider their wishes before deciding whether or not to proceed.

If we proceed with this type of an amendment, it would cause two problems. First, it would fail to set the minimum standard with respect to the time needed to assess such requests, and second, it would unduly prolong the suffering of persons who are found to be eligible.

On that basis, I would be opposing this amendment.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Virani.

Madam Clerk, I'll call the question at this time on CPC-7.

(Amendment negatived: nays 7; yeas 4)

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Clerk.

Mr. Cooper, were you saying something?

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

At this time, I'm going to stand down and have Mr. Genuis sub in for me.

[The Chair, Liberal, Iqra Khalid]

Absolutely. Thank you, Mr. Cooper.

Welcome to our committee, Mr. Genuis.

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

Thank you. It's great to be with you.

[The Chair, Liberal, Iqra Khalid]

We appreciate having you here.

Now we're moving on to CPC-8.

Mr. Moore, would you like to move it and speak to it?

Go ahead, sir.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I'm happy to move CPC-8.

CPC-8 requires that we inform a patient of advance consent before proceeding with MAID. This amendment would require in the case of advance consent that a health care provider inform a patient of their advance consent on the day that assisted dying is to take place and, if possible, give them an opportunity to respond and indicate whether they would wish to proceed or not. This amendment is supported by important stakeholders, including the Canadian Society of Palliative Care Physicians.

The concept of advance consent is something that has been debated but was included in Bill C-7, even though it was not required in a response to the Truchon decision. The position that I feel would have been appropriate was to have appealed this decision. Instead, the government took the opportunity to respond in Bill C-7 to the decision. It did not just respond to the decision, but went beyond responding to the decision. The decision of the Superior Court of Québec said that it was unconstitutional and violated the person's rights that death had to be reasonably foreseeable.

We don't know what the Court of Appeal would have done with that decision. We don't know what the Supreme Court of Canada would have done with that decision. The decision could very well have been overturned. It could have been found that there was no violation of rights. We don't know that because the decision wasn't appealed and the government did not defend its own legislation.

The government didn't just respond to the court decision. A number of the amendments that we've put forward, including this one, relate to the removal of safeguards that were included in Bill C-14, but there are also new concepts included in Bill C-7, which include a waiver of final consent. It means that if a person has lost the ability to consent, the person can waive that and still receive MAID. What this amendment would do is to take the steps necessary to see if contemporaneous consent can be given before MAID is provided.

I've mentioned the Canadian Society for Palliative Care Physicians. They've had a number of recommendations. I spoke about a couple of their recommendations in some of our other amendments. I want to draw your attention to their third recommendation, which is “to maintain [the] requirement for capacity to consent at the time of provision of MAiD”. They say:

A person should be able to change their decision up until the time of the procedure. The proposed changes in Bill C-7...remove that opportunity from a person who loses capacity after previous consent. Furthermore, the determination of whether or not a person does wish to withdraw their request after losing capacity to consent by way of words, sounds or gestures, is problematic in its potential subjectivity and may put clinicians in a precarious situation by having to interpret these responses. MAiD may be requested simply because the level of care required by the patient who has lost capacity exceeds what is currently being provided.

We've already discussed the issue of palliative care, but this is in the context of their recommendation, which is to not include the waiver of the final consent. That's not what this amendment is about, but this amendment speaks to the concern that's being raised by palliative care physicians. It is that we should, if possible, inform the patient who has given advance consent before proceeding. We should make an endeavour to get that response of whether to proceed or not proceed before taking the steps that would end this person's life.

I appreciate this recommendation. It's a recommendation that the palliative care physicians support. It's a safeguard amendment that would provide.... I don't think we can ever take lightly the gravity of the type of legislation we're dealing with, and this does involve a person's life and death decisions. Every possible safeguard should be put in place.

That is why I'm moving CPC-8. The Canadian Society of Palliative Care Physicians feels that this type of amendment is a responsible one. I ask that committee members to consider this amendment and to consider the source of the support for this amendment: physicians who are dealing with people in end-of-life situations.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

I have Mr. Genuis and then Madam Findlay.

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

Thank you very much, Madam Chair.

First of all, it's a pleasure to join you here at the justice committee. I have been following the debates in the House on this bill, as well as here at committee from a distance. I appreciate the opportunity to join the conversation.

I salute the work of all the members on this committee because having heard some of the testimony from people like Mr. Foley and others, it is very powerful testimony. I know not every member has been in a position, maybe because of their party, where they've been able to let on to have been moved by that testimony, but it can't help but have moved all of us to some extent as we see it. I just want to recognize, not the toll in the usual sense maybe but the emotional toll that these conversations are taking on all of us.

I was part of the debate, in a much greater sense, the first time this bill went through. I proposed a number of amendments myself at the justice committee.

My grandfather who was in a home passed away around the same time that this debate was going through the House, so all of us as well, as we contextualize what's happening, I know we are thinking about the things that may be happening or have happened in our own lives. That's particularly poignant, given all those who are suffering as a result of the isolation associated with the public health measures that need to be in place right now.

I recall specifically four years ago when this was being discussed, the importance of the question of advance consent. This amendment speaks to maybe trying to find a middle ground on the question of advance consent. The arguments of those in favour of advance consent—and these arguments were made at the time in the House—said that a person who perceives what their future would look like under certain circumstances and does not want that future, but also if that future takes place in a context where they're cognitively not able to rise to that legal standard of decision-making, there is some sense in which, if they're able to make the decision in advance, they should be able to.

That's the argument behind it, that somebody who experiences cognitive decline, as well as an increase in the pain they're feeling, shouldn't be prevented from making a decision that they would want to make if they were able to make that decision. In the absence of being able to have that decision take place in the moment, the idea of advance consent is that we would, in a sense, substitute the decision-making in advance. That is the logic, the ideal that is being aspired to.

Although the government decided not to proceed at the time, I think they were quite persuaded by some of the arguments made around the Audrey Parker case. This case was used to make the argument that if a person is not able to consent in advance about some future point, then they will make the choice to die before they would like to die.

What's striking about that case to me is that the law as it was written, Bill C-14, is supposed to only apply in a case where a person is in that moment experiencing serious and irremediable suffering. I always had a hard time in my mind squaring the circle of how it is that a person says, yes, they were experiencing serious and irremediable suffering in the moment and also wanted to be able to choose the moment to die, but they wanted it to be at such and such a point in the future, and not at this point.

I'm not taking away from the sincerity of a person who makes that decision in that moment. I'm just saying it was a hard thing for me to understand, but this was the direction of the argument.

On the other hand, those who were concerned about advance consent.... I was one of them. I made a few different arguments and I think those arguments still apply in the context of this amendment.

First of all, a person who makes a decision in the moment—who actions consent in the moment—is the only kind of consent we accept in law. I cannot consent in a way that binds my future self to some action. In the spirit of liberty and in the spirit of autonomy, we do see future selves as being distinct from present selves. There is a sense in which I am the same person I was five years ago, but there's also a sense in which I am a different person from the person I was five years ago. The person I was five years ago—let's say at the time the bill was first being debated—might have different thoughts about the issue, might have made different decisions and might have engaged the parliamentary process in a different way, and so forth.

The difference in the self I am now and the self I was then is that I have learned new things. I have also adapted to new circumstances. Things that I thought would be easy maybe turned out more difficult. Things that I thought would be difficult maybe turned out easier than I thought. The decisions I make today in the moment respond to the circumstances that I find myself in and the evolution or the changes that I may have gone through in between that point in the past and the point now.

We can all accept that as a general principle in the course of our lives, which is why we generally say in many different contexts that consent is consent in the moment. It's when you say yes to something in the moment. If you say yes to something and then a few minutes later you say, no, you don't actually want to proceed, then the present decision to say no overrules the previous yes. People change their minds. They absorb new information. They feel differently and they feel in ways that they didn't expect they would feel under certain circumstances.

What is true as a general principle is true in a particular way for those who have experienced some dramatic change in their life, like the onset of a disease or some kind of dramatic change in their health status. People don't really know how their life would be different if something that has been a big part of their life or something that they have taken for granted suddenly ceases to be there.

There's a lot of data around this. Part of what interested me about this whole question of advance consent versus present consent is that I did my master's dissertation on the idea that you could measure happiness. It is a really interesting field and important for how we benchmark our social goals and so forth.

One of the things about the happiness data is that people adapt to dramatically new circumstances in ways that they don't expect. That adaptation varies dramatically across different kinds of circumstances. A person might expect that if they were to get into an accident and have a disability and a change in their function, that person might, before that happened, expect that it would have a much greater impact on their quality of life. That's often the case, actually, for physical disability. At least, that is what the data suggests, that what they might expect as the loss of well-being that they would receive as a result of experiencing a physical disability is actually much less than the actual loss of well-being.

I'm certainly not an athlete, but suppose I was. I might think that if such and such a thing happened to me I wouldn't be able to do all these things that I liked doing and therefore my life would be so dramatically different it would be hardly bearable. Then at that future point, having been through a process of adaptation, having taken on new interests and having developed new hobbies, I may find myself thinking that, actually, I wish that accident or whatever it was hadn't happened to me, but my ability to adapt to the circumstances that I've been through is much greater than I thought it would be.

That's not the case in every case, and there is wide variation in terms of the way different things impact different people.

The point is that it's very hard to predict. If you ask me to make an advance directive, if I were to get this illness, if I were to have this particular kind of loss of functioning, and if I were to experience this change in my life, at what point and under what circumstances would I want medical assistance in dying? That current self projecting what the desires would be of that future self would be so imprecise to what my actual experiences were in the moment when I actually had those changes take place.

This is the core problem, at least with the idea of an advance directive. At the time, we were talking about this four years ago. There was advocacy for the idea of an advance directive, which is where a person could say—

[Arif Virani, Liberal, Parkdale—High Park, ON]

Madam Chair, I have a point of order, again, regarding the point you made about relevance.

This provision and this law deals with advance consent. An advance directive is the subject of the statutory review study, which is yet to take place. What is the relevance of this particular point being made by Mr. Genuis? Could you rule on that relevance piece, Madam Chair?

[The Chair, Liberal, Iqra Khalid]

Thank you for raising that, Mr. Virani.

Mr. Genuis, I would ask you to keep your comments within the scope of Bill C-7, and specifically, this amendment.

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

Absolutely, Madam Chair. I will respond to what Mr. Virani said. We made an argument at the time about a slippery slope. There is the speed with which the government is first saying these safeguards are necessary, and then removing safeguards. We see this process continuing.

It's evident in his comments again today when he says that there's going to be a statutory review of that issue. He knows that the Council of Canadian Academies looked at these same issues, and it said to be very cautious. The purpose of a statutory review should be to look at how well the legislation is working in general. It's very striking that we have the parliamentary secretary saying that the government is going to define the scope of the statutory review to only look at new additional things.

In terms of his point of order—and I don't think it's really a point of order but more a point of debate—I was making a point about the problems with advance directives, as such, and the way that—

[The Chair, Liberal, Iqra Khalid]

Mr. Genuis, I've already ruled on that point of order. You're just continuing with your arguments on CPC-8 at this time, and not on the point of order.

Please continue.

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

There's a distinction, then, between what the government is trying to do in this particular section of the legislation, which is inserting the issue of advance consent as a supposed alternative to the idea of advance directives. That is a narrower construing of the idea of an advance directive, in that it doesn't prescribe specific conditions on which someone else needs to rule in the abstract on whether or not the conditions that have been put in place in advance apply. Rather, it deals with the question of a person setting a specific date. It might be a person today saying, “On January 30”.

Shall I continue?

[The Chair, Liberal, Iqra Khalid]

Yes, of course. I understand now that you're subbing in for Mr. Lewis and not for Mr. Cooper. I was just clarifying that with the clerk.

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

Excellent.

This provision that we are amending is described as being distinct from the notion of an advance directive, but it still applies the same general principle, which is the idea that a person can consent in advance and say what their future self would do or would want under certain circumstances. That has all of the same problems as the advance directive I talked about.

This legislation already accepts the principle that still-present consent should overrule past consent. It says that if a person in the process of having euthanasia or medical assistance in dying administered to them in the moment reacts in some way, if they evidently show that they are not interested in what's happening, then the process must at that point stop.

That's a good principle, to say at least that if you're going down this somewhat dangerous road of advance consent that you at least accept that contemporaneous consent in theory overrules advance consent, except there's nothing here to require that the patient be told in the moment what's actually taking place.

As the law is written right now, if a person is already on an IV, then the contents of that IV could be altered such that death could be administered, and there would be no legal requirement that the person be consulted, be spoken to or be told what is happening in the moment. Something could be put in their food or in their IV, and on the basis of their advance consent, that would be considered totally legal.

The public's first response to hearing about this idea of what could happen might well be that it's just crazy that anyone would do that. Of course, no doctor would do that. We can hope that people would be reasonable, surely, and the reasonable thing to do in the moment is to, of course, consult with the person and to say to them, “Okay, sir or ma'am, is this something you still want? You had expressed this desire three months ago. Based on your circumstances right now, is this something you want to proceed with, and can we facilitate this moment in some way that's meaningful for you? Should we invite your family?” Those would all be the reasonable things to do.

I think it stands to reason that if we accept that that is what should happen in every case, then we should put language in the law, and we should put in place a safeguard to ensure that would happen in every case. That's what this amendment proposes to do. It proposes to put language into the legislation that prescribes the procedure by which there is at least a check-in with the person in the moment to confirm whether their desires are still consistent with their desires of the past consent.

Maybe the question that follows as well is whether this is consistent with the principle of advance consent, because if you're asking the person in the moment, then why have advance consent at all? The purpose of advance consent was to respond to the possibility that a person would experience some decline in cognitive function such that they would not be able to make that decision at that future point.

If today I think that I want to have MAID on February 20, and I worry that my cognitive ability by that point might be such that I'm not able to consent on that day, then I can give the advance consent now for that date based on present irremediable suffering.

Then, on February 20, maybe that decline I worried about will have taken place and maybe it won't have taken place. Either way, if I've lost cognitive function or my cognitive function has declined, then in that moment I will still be asked, but if I'm not able to answer or to understand, then my prior wish will suffice.

The effect of this amendment, in total with the existing section, is that it allows the prior wish of the person to be inserted into the moment, in place of a lack of response one way or the other. However, it does not overrule contemporaneous consent, and that contemporaneous consent, to be meaningful, is sought. That's what the amendment seeks to do. It provides a safeguard. We've talked a lot about safeguards. This is an example of a safeguard that the legislation needs in order to function well.

It's been interesting listening to the conversations around the whole concept of safeguards. Some members will come up with the idea that we trust health care providers and that these kinds of safeguards—provisions like this—aren't necessary because we would trust that people who are in these situations will do the sorts of things we would categorize as reasonable.

The reason we have safeguards—recognizing that there are tens of thousands of physicians in this country, and on top of it, there are nurse practitioners who are authorized to perform medical assistance in dying as well—is that we cannot guarantee that everybody in every case will do the right thing. That's why we need safeguards.

We've heard testimony that suggests there are cases in this country, and many of the people who have been impacted by those cases have come before this committee.... I don't doubt that there are people who have been impacted by cases like that who have not come forward for whatever reason. It's probably a small minority of the cases of people who were impacted where people have actually come forward.

We've heard testimony before this committee of people who have been in situations where it was made clear to them that the doctor, or some other member of the staff or people in that institution, thought that MAID was something they should go for. It is very troubling to me that we have cases where the system is saying that person should have MAID and suggests it. There was a case, and I can't recall the specific name, where a mother was told that in not wanting MAID for her daughter, she was being selfish. The same was being told to individuals themselves. We have cases where a person's very natural and very healthy—I would argue—desire to live is being described by the system as an act of selfishness. I think that should speak to the need for safeguards.

If you have a case where the system, physicians or people in a “care situation” think that a person should be receiving medical assistance in dying and the person has made the advance request.... Suppose it's a situation where the patient is viewed as difficult by their caregivers for whatever reason. When it comes to the day when that advance request is set to terminate—where the end point was set be—I would submit that in that kind of a case, this sort of safeguard is especially necessary.

If it is the paternalistic view of somebody else that MAID is something that this person should have in the moment, I wonder how much less likely it is that they will actually do that proper consultation, do that “reasonable” thing, and ask the patient, “By the way, you made this advance request. Today is the day. Are you ready? Are you sure? Is this something you want to proceed with?”

That's where we come to safeguards. We listened to the testimony of people like Mr. Foley. I believe the committee heard from Ms. Hyatt, a young woman with a disability who had the experience of going into a hospital with, in the scheme of things, a relatively minor complaint. She was asked in the moment if she was sure she wanted the care. This is the lived experience of many people who testified before this committee.

I find it striking as well, then, when we talk about the need for safeguards, that this committee has heard from many different disability organizations that have raised these concerns and that have flagged the problems in the legislation. I think all of the disability rights organizations, at least all of the ones I've been able to hear in following this committee, have spoken about the need for safeguards and the concerns they have with the legislation as written, the need for amendments and the need for amendments that protect people's fundamental rights.

I would like to say as well that if we're going to properly consider amendments like this, we've missed the opportunity to hear from so many other people. Conservatives have been proposing that we actually hear from a broader range of witnesses. We missed that opportunity because of the way in which the government disrupted the parliamentary calendar and then created this artificial timeline after the fact.