Evidence of meeting #11 for Justice and Human Rights in the 43rd Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
Legislative Clerk
Okay. I will continue reading.
The French version of the amendment reads as follows: (6) Dans l'exercice de ses responsabilités au titre du paragraphe (3), le ministre de la Santé collabore, si c'est indiqué, avec le ministre responsable de la condition des personnes handicapées.
Is that the version you have at the Department of Justice?
Acting General Counsel, Department of Justice
No, not exactly. Here's what I received from my colleagues in charge of drafting:
Dans l'exercice de ses responsabilités au titre du paragraphe (3), le ministre de la Santé consulte, lorsque cela est indiqué, le ministre responsable de la condition des personnes handicapées.
November 24th, 2020 / 11:40 a.m.
Acting General Counsel, Department of Justice
The word “avec” is not in the text.
Acting General Counsel, Department of Justice
So it says “...le ministre de la Santé consulte, lorsque cela est indiqué, le ministre responsable de la condition des personnes handicapées.”
Liberal
Liberal
Arif Virani Liberal Parkdale—High Park, ON
I'm perfectly happy with the language in French and in English, as we've just heard it.
I apologize, Chair. My raised hand was left over.
Conservative
Rob Moore Conservative Fundy Royal, NB
Thank you, Madam Chair.
We just heard from the departmental lawyers about having certainty, because we're dealing with Criminal Code provisions, and about the concern around “should”. Who determines what “should” is? Now we're saying “must”, but then we're adding in a kind of wiggle room with “when appropriate”, so the same people who would be determining “should” are now determining “when appropriate”.
Who decides what “when appropriate” is? Who decides “should”? I think we're completely back at square one with this. I would propose—I don't know what we're concerned with here—to just say that the Minister “must consult” and to leave out the “when appropriate” because it leaves this open to uncertainty, and we can't have that, I believe, when we're dealing with something this serious and when we're dealing with provisions that are dealing with assisted dying. Who's going to make that determination? The same person who would be making the determination of whether they “should” consult is now going to be making the determination that they “must” consult but “when appropriate”.
In my mind, there's no difference between those two things. To me, it would be a lot more certain and clear, and we'd be doing everyone a great service, to just say that the minister “must consult”.
Liberal
The Chair Liberal Iqra Khalid
Mr. Moore, procedurally, we need to first vote on the amendments that are before us before you can make further amendments. I will come back to you at a later time, once we've voted on these subamendments, if you would like to propose any further amendments.
I have Mr. Cooper next on my list and then Monsieur Thériault.
Go ahead, Mr. Cooper.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Thank you, Madam Chair.
I was going to say what Mr. Moore already said. It would seem to me that the wording as presently drafted, as opposed to “should” or “must, where appropriate”, provides much greater clarity and certainty.
With regard to the question of enforcement, I guess no matter how you look at it—whether the minister “must consult”, whether the minister “should consult”, whether the minister “must consult, when appropriate”.... I don't know if, from an enforceability standpoint, any of those versions change that question. What this would do is very simply provide a positive duty on the part of the minister to consult. I think that duty is essential, having regard for the very, very serious concerns that have been raised by the disability rights community.
On that basis, I would support the existing language.
Conservative
Liberal
The Chair Liberal Iqra Khalid
Sorry, Madame Findlay, I'm just going to clarify something that Mr. Cooper said. The existing language does say “must, when appropriate”.
Conservative
Michael Cooper Conservative St. Albert—Edmonton, AB
Sorry, just to clarify, the language, before it was changed, simply provided.... The original amendment provided for “must”. That's the original amendment, so that's the language that I support.
Liberal
The Chair Liberal Iqra Khalid
Thank you, Mr. Cooper.
Madame Findlay, you have a point of clarification.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Yes, please. I would like to hear from the departmental officials what the difference is in terms of enforcement or interpretation between “must” and “must, when appropriate” because I don't think I've seen language like “when appropriate” in the Criminal Code. I certainly understand the word “must”. Could we just hear from departmental officials on that, please?
Acting General Counsel, Department of Justice
Thank you, Madam Chair.
I don't think this is an issue that is specific to the Criminal Code, as opposed to other statutes. The Criminal Code does not contain very many regulation-making powers for ministers that would impose duties to consult. I think these issues are just more general legislative issues. I think the difference between “must consult” and “must, when appropriate, consult” is simply that the latter version, with the addition of the words “when appropriate”, means “in relation to the aspects of whatever the minister is doing, where that consultation would be necessary”.
The MAID monitoring regulations, for instance, will contain aspects that perhaps are completely unrelated to the issues that the minister responsible for the status of persons with disabilities would be interested in. They might relate to, for instance, developing—and this is just a hypothetical—regulatory obligations for the practitioners to provide information about their area of specialty in which they practice. That may not be something where input from the minister responsible for the status of persons with disabilities would be pertinent.
I think that all “when appropriate” does is to say that when there is an aspect of the regulations that the Minister of Health is working on that is directly or indirectly related to the responsibilities of the other minister, that is when an obligation to consult would be required.
Liberal
