Evidence of meeting #7 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 maid.
A recording is available from Parliament.
Bloc
Luc Thériault Bloc Montcalm, QC
Thank you, Madam Chair.
I would like to thank the witnesses for their valuable contributions. I will address Dr. Naud, Judge Rochon and Mr. Roberge.
Mr. Roberge, do you believe that Bill C-7 would lead to as clear a challenge as with Bill C-14? Are there provisions in Bill C-7 that could infringe on the rights guaranteed under section 7 of the Canadian Charter of Rights and Freedoms and therefore be challenged in court? I am not asking for a thesis in response, just your quick impressions.
David E. Roberge
Thank you for the question.
On behalf of the CBA, I will refrain from expressing an opinion on how likely it is that this bill will result in a constitutional challenge.
That said, you heard my opening statement. Certainly, the CBA sees a significant risk of a constitutional challenge, particularly in terms of mental illnesses, which are excluded from Bill C-7.
Bloc
Luc Thériault Bloc Montcalm, QC
Okay.
Judge Rochon, I want to begin by thanking you for giving us a form with specific wording. It is most valuable in the context of our discussion.
I have a concern about renewing the request every six months. You are advocating for a completely separate regime for neurodegenerative diseases. We are not talking about the 90-day period, but an entirely different regime that would have nothing to do with mental illness.
Why do you say six months and why a renewed request?
Retired Justice of the Québec Court of Appeal, As an Individual
One of our concerns is the emotional reaction of a person who is diagnosed with Alzheimer's disease. Since it is a disease that evolves over a period of seven or eight years, we absolutely want that person to have time, if he or she submits a request, to think about it. A period of six months allows for that exercise of reflection. As I understand it, the reflection would take place over an initial period of six months and would not have to be renewed every six months.
Bloc
Luc Thériault Bloc Montcalm, QC
Okay, thank you for that clarification.
Dr. Naud, you talked about obstruction. Patients must have a choice. Respect for a person's dignity implies self-determination and their deeply personal right to make, or not make, a decision about their own death.
You talked about obstruction and I would like you to expand on that. At the end of your testimony, you said that there should be increased monitoring of refusals. I would like to hear your thoughts on that.
Family Physician and Clinical Professor, Department of Family and Emergency Medicine, Laval University, As an Individual
Thank you for asking that very important question.
When we talk about obstruction, we are talking about people who have signed a perfectly legitimate request for medical assistance in dying, but then someone just puts it in the garbage or on a shelf and waits for the patient to die. As I mentioned, some patients are under pressure to not make, or to withdraw, that request.
Not all of those cases are reviewed. When this happens, there is no accountability on the part of physicians and institutions. The only accountability is in the administration of medical assistance in dying. So we can say that this has been done in an extremely rigorous manner for five years now in Quebec.
Those are the vulnerable patients who are not protected. As I mentioned, in Quebec, one out of every three requests for medical assistance in dying, formulated in a completely legal and legitimate manner, is not addressed and we have no explanation. The blunders that we have observed over the past five years are not in the administration, but in the systematic obstruction by certain opponents for their own personal reasons, or by certain institutions. So it is important to examine that.
Bloc
Luc Thériault Bloc Montcalm, QC
This is important, because when a piece of legislation provides for an exculpatory measure, it must not be illusory in reality.
Do you know whether certain units, certain hospitals, certain palliative care homes exclude a patient from palliative care because he or she has applied for medical assistance in dying?
Family Physician and Clinical Professor, Department of Family and Emergency Medicine, Laval University, As an Individual
Thank you.
You should know that, in Quebec, all publicly funded institutions are required to provide medical assistance in dying. Only palliative care facilities, or hospices, had the option of not providing it. There are 34 of them.
Since the legislation came into effect, half of those hospices now provide medical assistance in dying. For the other half, there are still requests for medical assistance in dying, but those patients are simply discharged from the facility and sent to a public facility to die elsewhere. This is because they dared to apply for medical assistance in dying on the sole basis that they no longer wanted to tolerate their suffering.
In my opinion, what is shameful right now is the way these patients are treated.
Liberal
The Chair Liberal Iqra Khalid
Thank you.
Thank you, Mr. Thériault and Dr. Naud.
We will now go on to Mr. Garrison for six minutes.
Go ahead, Mr. Garrison.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Thank you very much, Madam Chair.
I want to extend my thanks to all the witnesses for appearing today and for the submissions. I know that some of them have been made separately.
At the beginning, I always have to express my frustration that some of the issues we're talking about in the committee go well beyond the mandate of the justice committee in studying Bill C-7. I hope we will have a special committee established that can deal with those broader issues, because these cannot be solved by adding one or two sessions to this committee.
My first question is for Monsieur Roberge. We have had testimony that raises questions about why the Truchon decision was not appealed. I would like to hear some comments on the relationship between the Truchon and Carter decisions, because I think there is a view that Truchon is set squarely within the parameters of Carter, and that some of these basic decisions were actually settled in Carter at the beginning of this litigation.
David E. Roberge
I'm not going to speculate as to why the Truchon decision was not appealed. That said, I think there are, indeed, common grounds between the two decisions, that of Carter and the Supreme Court of Canada and the Quebec decision in Truchon.
I think one of the common grounds for the CBA is, indeed, that both courts recognized the need again to have vulnerability assessed on an individual basis by a physician. While there are risks when discussing MAID for vulnerable people, those risks, the Supreme Court says, are already part and parcel of the medical system in other kinds of end-of-life decision-making, and they could be resolved through a proper assessment of informed consent.
I'm not going to go into the technicalities of the decision, but while the Supreme Court of Canada decision was grounded as an infringement of section 7, the Québec Superior Court also found an infringement of section 15.
I hope my remarks are helpful.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Yes, I believe they are.
I'm going to turn to Dr. Gibson, who raised the elimination of the 10-day waiting period and the establishment of a waiver of final consent.
Again, in the context of the court decision where ending suffering was a primary goal, can you comment on what would happen if we fail to change those two provisions.
Director and Sun Life Financial Chair in Bioethics, University of Toronto Joint Centre for Bioethics, As an Individual
One thing we might want to keep in mind is that, in fact, both of the two tracks recognized suffering as a primary motivation for somebody to be seeking MAID, except in the one case when it's a situation where somebody has already been very clearly found eligible and is concerned about losing their capacity. It's the dynamic of suffering together with potential loss of capacity, which I think has been really underscored. In fact, just to provide a slight modification to the way we think about what Bill C-7 is doing, it is providing a pathway for advance consent in a very limited set of cases.
When we think about this, we may want to think about what was the purpose of the waiting period such as it was originally envisioned as the 10 days. It was primarily envisioned as a safeguard against the possibility that somebody may be ambivalent perhaps, that they may change their minds. I think what we have learned along the way when we speak to clinicians—and this is confirmed by caregivers and families—is that the persons who seek MAID, and there's some evidence to support this as well, have stable preferences. They are unlikely to change their minds at that point.
To eliminate the 10-day waiting period is actually also to be responsive to the suffering that individuals were enduring whilst they waited for that 10-day period to end.
What we might want to think about is how does that thinking extend to the example of the 90-day waiting period, which is being proposed for the second track, which is not about reasonable foreseeability of death? We might also ask the question of whether individuals who approach the prospect of opting for MAID versus continuing in a state of enduring suffering are not approaching this from the perspective of a considered, well-grounded view.
In terms of the embedded requirement that there needs to be assurance of clinicians that this has been a well-considered decision, many individuals who are approaching a conversation about MAID are coming in with well-considered views. It may be not aligned with what their families and communities might wish for them, but, nevertheless, I think we might want to make a presumption of a well-considered view first, and then explore where there may be decisions where, in fact, there might be misunderstandings or a need to really shore up some clarity about whether or not that person is or is not vulnerable in that circumstance.
NDP
Randall Garrison NDP Esquimalt—Saanich—Sooke, BC
Very briefly, is there any reason to believe that removal of the 10-day waiting period or the establishment of a waiver of final consent would have differential impacts on any particular kinds of patients who are seeking medical assistance in dying?
Director and Sun Life Financial Chair in Bioethics, University of Toronto Joint Centre for Bioethics, As an Individual
I don't think we have strong evidence to support that being the case, but we do know that if we look at the the most recent reporting in Canada on the reasons that people might seek MAID under those circumstances, we see that these individuals are already eligible. They've reached the point where, now, they're waiting for MAID to actually be administered. The 10 days doesn't necessarily protect; it could create circumstances where persons are going to have to just wait longer in a state of suffering, after already having a very solid view on this.
I think it's worthwhile to consider at what point a patient has reached the point of being eligible, making a request and being willing to wait 10 days. These are stable and well-considered views by this point.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Dr. Gibson.
Thank you, Mr. Garrison.
We'll now move to Mr. Manly for two and a half minutes. Please go ahead.
Green
Paul Manly Green Nanaimo—Ladysmith, BC
Thank you very much, and thank you to the witnesses.
Thank you to my fellow members of Parliament for giving me the chance to ask a few questions.
There are protections and exemptions for mental health in this legislation. I've been hearing from the disability community in my riding about its concerns about people with cognitive disabilities, people who are non-verbal or who have trouble communicating. They obviously have suffering in their lives, but is it related more to the characteristics of the disabilities they're born with?
I am wondering, and I will ask Mr. Roberge this, if he thinks there are enough protections in this legislation for people who have characteristics they're born with and who are dealing with suffering, but may not have the capacity to make these kinds of decisions, or may be coerced into making a decision around MAID.
David E. Roberge
On behalf of the CBA, what is really important, obviously, is access to proper medical care. It's a key factor. I would leave it to people with more experience, like the physicians who have expertise and experience in this field, who are in contact with patients, to maybe address your question more directly.
But from a legal perspective, I would say that, of course, the quality of the safeguards does matter, as well as the monitoring of those cases. Again, at the risk of repeating myself, for the CBA it's important to still maintain a patient-centred approach to assess those issues on a case-by-case basis.
Green
Paul Manly Green Nanaimo—Ladysmith, BC
Okay.
Would Mr. Naud would be willing to comment on that same question as well?
November 12th, 2020 / 11:55 a.m.
Family Physician and Clinical Professor, Department of Family and Emergency Medicine, Laval University, As an Individual
Thank you.
In a few words, suffering is only one of the criteria. There are several others, including the ability to consent, all of which must be considered and evaluated very rigorously.
Even if a patient has difficulties speaking, we cannot circumvent the last criterion or all the others that ensure that medical assistance in dying is administered very rigorously and in full compliance with the law. I am therefore not concerned about the possibility that some patients who are ineligible for MAID may have inappropriate access to it.
Liberal
The Chair Liberal Iqra Khalid
Thank you very much, Dr. Naud.
I will move to the second round of questions, starting with Madam Findlay for five minutes.
Conservative
Kerry-Lynne Findlay Conservative South Surrey—White Rock, BC
Thank you, Madam Chair.
Thank you all for being here with us today.
Mr. Roberge, in a letter to the Minister of Justice, from the Canadian Bar Association, dated February 11, 2020, the CBA wrote:
Subject to the opportunity to add safeguards to the current Criminal Code MAiD framework, we believe that two additional measures compatible with the Carter decision may be considered:
a longer reflection period before MAiD is administered; and
a psychiatric assessment.
These measures address capacity and consent to the termination of one's life, which are instrumental to the Carter decision.
Given this letter from just a few months ago, does the CBA support Bill C-7's complete abolishment of the 10-day reflection period, or what about a shorter reflection period?
David E. Roberge
When the CBA wrote about including a longer reflection period, it was with respect to cases where patients were not nearing death. I think Bill C-7 does include a longer period for those cases where death is described as not reasonably foreseeable. Although the CBA never expressed an opinion as to a specific delay or a longer period, I think Bill C-7 echoes the comments of the CBA.
With respect to the other aspect of your question, the CBA raised the possibility that in some instances, notably when capacity is more challenging to assess for physicians, there might be cases where consultation with a psychiatrist could be justified.
Again, I think we have some concerns about making a blanket requirement for all cases to have an expert with specific expertise in the condition causing the patient's condition, while realizing again that practitioners could make a referral if they feel they need more specific advice in this regard.