Justice Committee on Nov. 10th, 2020

[Michel Racicot]

Let me first say that once a person demands a particular medical treatment, a physician, in his own professionalism, is not forced to provide that service. He will seek the service that is most appropriate for the patient.

As to the referral, I understand that the situation in rural areas may be difficult, but it is not necessary for a particular practitioner who objects, for conscience reasons, to refer somebody who doesn't share that objection. There are other means of making these referral services available to the population across a province. You just have to put in place an appropriate information system and do it.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

My question was very specifically whether you believe the conscience right to refuse referrals applies to other medical services or practices, other than medical assistance in dying.

[Michel Racicot]

Absolutely. Absolutely.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much, Mr. Racicot.

My next question is for Dr. Janz.

In your presentation, you went very quickly through some recommendations for Bill C-7. What I believe you said was that you oppose removing the waiver of final consent; you oppose eliminating the 10-day waiting period; and you oppose reducing the number of witnesses. I'd like to ask whether you believe that those provisions provide particular risk to members of the disabled community or whether you simply oppose those in general.

[Dr. Heidi Janz]

Thank you for the question.

I believe that those elements of the bill pose a particular risk to people with disabilities given the realities of medical ableism and the potential that people with disabilities, upon hearing repeatedly that they should want to hasten their death, then succumb to that message.

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Thank you very much.

If I could ask the same question of Dr. Frazee, do you think that the provisions regarding witnesses, the 10-day waiting period and the waiver of final consent pose specific risks for people from the disability community, should they qualify for medical assistance in dying under the very high standard that remains in place?

[Dr. Catherine Frazee]

Madam Chair, to respond to that, I have to first ask a question.

For the purposes of responding, am I assuming that we now have medical assistance in dying for people who are not at the end of their lives? Is that implied by the question?

[Randall Garrison, NDP, Esquimalt—Saanich—Sooke, BC]

Certainly, Bill C-7 says for those practices, we're talking about those whose death is reasonably foreseeable. Those provisions specifically relate to what is sometimes called the “first track”.

[Dr. Catherine Frazee]

All right. Thank you.

That was not the principal focus of my preparation, but I think it is important to recognize, as Dr. Janz alluded to, the very subtle ways in which our messaging, even the delivery of our care at times, can nudge a person. The best example I can offer is one that was given to me by a colleague in human rights who was describing racism. He said it's like a hair that brushes your cheek. Other people can't see it, but you can feel it. You know exactly where it is. People with disabilities feel ableism in very much the same way in how we are regarded.

We have to remember that the original Carter decision described the risk of persons being vulnerable to inducement to seek, in a moment of weakness, a route to end their lives. I think those safeguards are there in large measure to ensure, or at least to help, people get past those weak moments when we are at rock bottom.

[The Chair, Liberal, Iqra Khalid]

Thank you very much, Dr. Frazee.

Mr. Garrison, that concludes your six minutes of questioning.

I see that we are at 1 o'clock. Do I have the consent of the committee to go for a second round of questions?

Yes? Okay. Thank you.

With that, Mr. Lewis, you have five minutes, starting now.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Madam Chair.

Thank you to the committee. I certainly appreciate this time.

To all of the witnesses, your stories were incredibly compelling today. They're obviously vital to this conversation, so I thank you very much. It is a little disappointing that this legislation isn't getting the due attention that I believe it deserves. I would like to have 40 meetings to call witnesses, not four. That is just as a point of interest.

Dr. Goligher, are you concerned, sir, about the removal of the 10-day reflection period? If so, would you like this committee to consider a shorter time rather than see it abolished?

[Dr. Ewan Goligher]

I would say that I am very concerned about the removal of the 10-day waiting period. It strikes me that this is such a serious decision to be made, with such care and consultation, with the assurance that all of the underlying issues that drive people to seek death—those issues are well documented in the palliative care literature—have been thoroughly addressed. MAID should always be seen as an option of last resort. The goal of health care is to help the patient flourish. Palliative care is about helping the patients flourish even as they go through the dying process. I think anything that accelerates or hastens that process and doesn't give the opportunity for reflection and so on is of serious concern.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Dr. Goligher.

Next, can you explain how Canadians can access MAID without effective referral and why that's important for providers? Further, what provinces require effective referral in existing policy? What have other provinces done to better balance conscience rights and access?

[Dr. Ewan Goligher]

Ontario and I believe Nova Scotia are the only jurisdictions in the world that require an effective referral. In every other jurisdiction in Canada and around the world, patients are able to obtain access without the requirement for an effective referral. There are already mechanisms in Ontario, where I practice, whereby patients can seek access to medical aid in dying without an effective referral.

It's quite clear that systems can be constructed, as Monsieur Racicot already suggested, through telehealth, etc., and organizations representing health care conscientious objectors have made very reasonable and constructive proposals in this regard, so if there were a will on the the part of the federal government, there is undoubtedly a way this could be done so that we would not be required to aid and abet the euthanasia of our patients.

[Chris Lewis, Conservative, Essex, ON]

Thank you very much, Doctor.

Through you, Madam Chair, to Madam Hyatt, thank you very much for sharing your moving story of how a doctor in the hospital presumed you might want to die from your pneumonia because of your disability. We have heard heartbreaking testimony that this type of coercion can be subtle but is indeed common.

What protections would you support to ensure that MAID participation is only voluntary participation through the whole process?

[Taylor Hyatt]

Most of all, I would like to see an amendment put in place ensuring that discussions about medical assistance to end one's life be raised only by the person who wants to die.

I would never want a medical professional to begin the conversation about life-ending initiatives as a result of assumptions they make about what it's like to live with my disability. Otherwise I would not feel comfortable seeking certain forms of medical treatment. I want to be seen by a doctor who will care for me as a whole person, including taking my status as a disabled woman into account, and who will support me in living and thriving in the only life I have, which is as a disabled woman.

Thank you.

[Chris Lewis, Conservative, Essex, ON]

Thank you very much.

I'm sorry, Madam Chair. Is that 30 seconds that I have left? I'll go very quickly to Mr. Racicot.

Should MAID be considered a therapeutic option equal to current standards of medical care?

Thank you.

[The Chair, Liberal, Iqra Khalid]

Be very brief, sir.

[Michel Racicot]

I am not a doctor, so it's very difficult for me to say so, but certainly we do not consider MAID to be medical care. Killing a person is never “care”. This is why it needed an amendment to the Criminal Code to allow that across Canada.

We have fought in Quebec against Bill 52, saying that it was not under provincial jurisdiction, but fell under the exclusive federal jurisdiction over the criminal law, so certainly MAID, is not, in our opinion, health care.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Lewis.

We'll now move on to Mr. Virani for five minutes.

Go ahead, Mr. Virani.

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

Thank you very much, Madam Chair.

There has been a lot of discussion about the consultations that took place. As somebody who has participated in them, I think it's important that the committee testimony reflect that there were 125 experts and stakeholders who were met with in a series of round tables that took place around the country with ministers and various parliamentary secretaries. There were also 300,000 people who submitted feedback via a questionnaire.

I also think it's important to put on the record that the testimony we heard today is very important and very critical, and the advocacy is being heard and being listened to. The statements that have been put on the record in the chamber, including at the committee, should reflect, as we all do as parliamentarians, that all lives are valuable, particularly the lives of persons with disabilities. What we need to reflect also is that pressure is never appropriate in terms of any coerced choice. If there is ever pressure that is untoward, it needs to be investigated and, if necessary, prosecuted.

I will ask Dr. Goligher a question and then I'll ask Mr. Racicot a question.

Dr. Goligher, I think you used the terms aiding and abetting a death. Just to reiterate, there are actually four protections with respect to conscience rights found in both the preamble and the text of Bill C-14, in the sixth to last paragraph, if I remember correctly, of the Carter decision, and in section 2 of the Charter of Rights and Freedoms. Also, the effective referral regime was actually litigated at the Ontario Court of Appeal and was found to be constitutional.

I'm going to ask you to comment on another aspect, because you also mentioned the equality rights of persons with disabilities, and it's an important point. I've found another paragraph here where this actual issue was put to the court in Truchon, and the Truchon court found that by not changing the regime, the equality rights of persons with disabilities would be compromised, and section 15 would thereby be violated.

This quote is from paragraph 678:

The requirement at issue reveals a legislative regime within which suffering takes a back seat to the temporal connection with death. Where natural death is not reasonably foreseeable, the consent and suffering of the disabled are worthy only of the sympathy of Parliament, which has adopted a protectionist policy towards every such person, regardless of his or her personal situation. As soon as death approaches, the state is prepared to recognize the right to autonomy. This is a flagrant contradiction of the fundamental principles concerning respect for the autonomy of competent people, and it is this unequal recognition of the right to autonomy and dignity that is discriminatory in this case.

There is no doubt that discrimination is a live issue in this context, but in fact, the conclusion of the Truchon case was exactly the opposite of some of what we've heard today.

I was wondering if you could comment on that, Dr. Goligher.

[Dr. Ewan Goligher]

Sure. I'd be happy to comment. Thank you, sir, for the question.

I'm not a lawyer, so I can't comment on the integrity and validity of the legal reasoning involved, but I will say in general, with respect to both the superior court decision in Ontario about the effective referral regime as well as the Truchon and Gladu decision, that the mere fact that the judge reached a decision does not imply that the decision was correct. Therefore, I don't think we can simply argue on the basis of the fact that the judge reached the decision that these concerns being raised are invalid.

[Michel Racicot]

Maybe I could chime in.

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

Mr. Racicot, if I could ask you one other question, you can answer both.

You said in in your submission, I believe, that Canada is looking like “the most permissible country in the world concerning MAID.” I'm giving you an opportunity to correct the record. I believe that as a lawyer you're probably aware that the Benelux nations allow medical assistance and dying for minors, as well as for situations where mental illness is the sole underlying condition. Neither of those two apply under Bill C-14, nor would they apply under Bill C-7.

Perhaps if you want to clarify the record in that regard...? Also, would you want to comment on paragraph 678 of the Truchon decision?

Thank you.

[Michel Racicot]

Thank you.

First of all, when I talk about the most permissive regime, if you take the example of Holland, in Holland there is a requirement not only that some of the treatments be available, as it is in Bill C-7, but also that everything has been tried. This is not present in Bill C-7.

Secondly, on the other issue, I should say that on the reasoning of the court, I'm not saying that we're trying to appeal it, but the reasoning of the court was focused on ignoring two of the objectives of the law, which are still present in Bill C-7: the inherent dignity and equality of each human life and that suicide is an important problem.

As for what the court said—and I have the French version—the judge said that she could not recognize the first two objectives in affirming the value, because these objectives were stipulated in a manner that was too vague. She chose to ignore that, and she chose to consider, as the court did in Carter, that the only objective of Bill C-14 was to protect persons who could succumb to MAID in a moment of vulnerability. I think we need to take a look back at that decision and—