Justice Committee on Nov. 17th, 2020

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

I have Madame Findlay, Mr. Garrison, then Mr. Cooper.

Go ahead, Madame Findlay.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you, Madam Chair.

I think this is a well-thought-out amendment, and I thank our colleague Mr. Manly for his contribution here.

In reference to earlier statements that we all have some sympathies, I have a great deal of sympathy, I think, listening to persons with disabilities in particular who came forward and spoke to us, and doctors who have the care of vulnerable patients. There are socio-economic elements here that should not be the reasons people make these choices. Lack of support and lack of advantage should not be the reasons to implement MAID.

Also, in earlier statements, my colleagues were talking about autonomy yet highlighting the competing tensions. If we truly believe in the autonomy of people to make these decisions, they should be able to make them themselves, about the competing tensions or their competing rights. Which of their rights do they feel they want to emphasize and which do they want to exercise in the options available? There should be two options available.

The testimony we've heard on these issues is very compelling to me. When we talk about societal changes, the people who are in the front line of this—the health care professionals, the patients and future patients—are the ones dealing with this directly, not us. We're legislators and we're trying to look at it in an overall context. We all want to relieve suffering, but if we truly believe in autonomy, then that means that we as a society, as government, as legislators and as compassionate Canadians, should be in favour of an amendment like this, which makes it very clear that these decisions should be free of any kind of deprivation or social disadvantage, so I'm in favour of it.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thanks, Madame Findlay.

We'll go to Mr. Garrison and then Mr. Cooper.

Go ahead, Mr. Garrison.

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

Thank you, Madam Chair.

I know that this amendment arose from concerns in the disability community, and I have had many discussions with members of the disability community locally, provincially and nationally on this amendment in particular. It is a very broad amendment. While it arises from the disability community, it would apply to any and all marginalized communities. It is not exclusive to the disability community.

I think what this amendment inadvertently does, in the broad way it's stated, is potentially deny autonomy to others to make decisions about the end of their life.

While I absolutely believe we have to have further discussion of the very valid concerns of the disability community and our large failures to provide supports to that community—as I've said many times, I believe that needs to go on in a special committee of the House to examine those broader issues—I think this amendment inadvertently, in modifying the tests to receive medical assistance in dying, is unconstitutional and would be ruled so by the courts because of its very broad impact on members of groups other than those with disabilities.

In the end, I think it also inadvertently denies autonomy to people with disabilities. We must endeavour to make sure that the choices they have before them are real and that they receive a quality of support to lead a good life. In the end, however, I believe this amendment would affect the autonomy of both disabled people and other marginalized people in our society to make decisions about how their life ends—not about ending their life, but about how it ends—and for that reason I am opposed to this amendment.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Garrison.

We'll now go to Mr. Cooper.

Go ahead, Mr. Cooper.

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

Madam Chair, I want to speak in strong support of the amendment put forward by Mr. Manly.

I would note that in the preamble of Bill C-7 there is reference to the fact that “Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and recognizes its obligations under it, including in respect of the right to life”. I believe this amendment is consistent with that preamble, with that which the government purports the bill seeks to do, which is, among other things, to respect Canada's obligations under that convention.

In that regard, I would note that article 10 of the applicable convention provides that “States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.”

Now, further to that, I would note that the UN special rapporteur, even before the introduction of Bill C-7, raised concerns about Canada's medical assistance in dying regime. To that end, she noted in her statement issued on April 12, 2019, “I am extremely concerned about the implementation of the legislation on medical assistance in dying from a disability perspective”. She then went on to express concern about the absence of alternatives for persons with disabilities.

I believe this amendment speaks to some of those concerns and would go a long way toward guarding against vulnerable persons being induced to make a choice that doesn't fall within their autonomy because they simply feel that they have no other options because of their marginalization.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Cooper.

I have Mr. Moore, then Mr. Lewis, and then I'll call the question.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I want to echo the points Mr. Cooper just made.

Mr. Garrison mentioned or, I guess, presupposed how some future court may look at this. It's a reminder of how we came to be in this situation in the first place, when the court decision, the Truchon decision, significantly changed what was a brand new piece of legislation, which was Bill C-14. It was less than five years old and hadn't even had its first review. That decision said that someone no longer needed to be in a situation in which death was reasonably foreseeable. The government, rather than appealing the decision, instead immediately dropped any efforts to defend its own legislation and then introduced Bill C-7.

I don't think the consultation with the disability community, with persons living with disabilities, has been robust enough. I say that based on the four days of testimony we had. On one particular day, a number of the groups represented spoke for Canadians who are living with disabilities. As Mr. Cooper just put it, we have an obligation and we have international obligations to do the right thing. The message we heard back is that people are going to be put in a position based only on their being a person living with disability, which puts them at a disadvantage compared to everyone else.

I think quite the opposite. Unfortunately, this bill singles this group out. We've been hearing that loud and clear, if members of the committee have been getting the same correspondence I've been getting, from groups from coast to coast, local groups as well as national groups, representing Canadians living with disabilities, who find some of these amendments to be an affront to them as Canadians who are seeking to be wholly involved with all that our country has to offer.

That's why I think we have an opportunity here. I'm just asking members of the committee to really think openly about what we heard and about what Mr. Manly has very thoughtfully put forward. I'm reading every word of his amendment, and to me it speaks exactly to “deprivation, social disadvantage, lack of support or perceived discrimination”. What this amendment is saying is that the decision to receive assisted dying cannot be the result of one of those conditions. How can we as committee members in good conscience not support an amendment that responds so directly to the testimony we heard and that provides an element of safety? We're going to get to other amendments later that were.... While Bill C-14 had protections in place for Canadians under our assisted dying regime, some of those protections are being pulled out with Bill C-7.

I think this amendment is a thoughtful way of saying, “We're listening and we're acting cautiously. We're proceeding with caution and we, above all, are going to take every step necessary to protect the rights and the ability of persons living with disability to be fully engaged in our society.” I know committee members heard what I heard: that this bill is in danger of really hurting a lot of Canadians living with disability and how they see themselves as participants in Canadian society.

I think this amendment, if we could all support it, Madam Chair, would go a long way to saying that we heard and that we were listening when they took the time to appear before us as witnesses.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Moore.

We'll go to Mr. Lewis, and then we'll call the question.

Go ahead, Mr. Lewis.

[Chris Lewis, Conservative, Essex, ON]

Thank you, Madam Chair.

I very much appreciate the opportunity to speak to this.

First and foremost, I want to thank Mr. Manly for bringing this amendment forward. I think it's fantastic. I think it perhaps doesn't go quite far enough, but at least it's a first step for some protection for those people with disability.

We heard some great testimony on both sides. I believe that we all took something away from it. Probably the ones that touched me the most were from the folks who truly threw their stories out on the table and said, “Here's who we are, here's where we came from and here are the shortcomings of this bill. We're begging and pleading with you for help and support on this.”

This amendment begins to scratch the surface of the help they need, the respect they deserve, on so many fronts. I'm certainly speaking in support of this.

Madam Chair, I have a question for you. I know in our first amendments...you made a ruling on the amendment. Specific to this one, I haven't heard if there is actually a ruling on this one yet. The reason I bring that up, Madam Chair, is just for clarity for all members. I did recognize, in the last round of voting on the amendment, that the mover actually voted for your ruling, which is something that doesn't typically happen. I was wondering if we could have the amendment spoken to, then have your ruling come through, and then go forward.

If I missed something, I apologize in advance.

Thank you, Madam Chair.

[The Chair, Liberal, Iqra Khalid]

Thanks for that, Mr. Lewis.

No, I do not have a ruling on PV-1.

Having exhausted the speakers list, we'll call the vote now.

(Amendment negatived: nays 7; yeas 4 [See Minutes of Proceedings])

We will now go on to BQ-2 or BQ-3. To clarify, if both BQ-2....

[Luc Thériault, Bloc, Montcalm, QC]

It's actually BQ-3, Madam Chair. Amendment BQ-2 was replaced by BQ-3.

[The Chair, Liberal, Iqra Khalid]

Okay, perfect.

Thank you. I'll pass the floor to you, Mr. Thériault, to speak to BQ-3. I understand that you will not be putting forward BQ-2.

[Luc Thériault, Bloc, Montcalm, QC]

Exactly.

There are two safeguard regimes. Some safeguards relate to natural and reasonably foreseeable death, and others relate to death that isn't reasonably foreseeable. Bill C-7 removes the criterion of reasonably foreseeable natural death. However, this criterion is reintroduced when we come to the safeguards and the two safeguard regimes. Some doctors who appeared before us said that the criterion wasn't medical and that it was vague and confusing.

I wanted to clear up this confusion to ensure access to both safeguard regimes. The issue isn't about access to medical assistance in dying, but about defining provisions regarding access to medical assistance in dying in the event of either imminent or non-imminent death, through the two safeguards.

After “whose natural death is reasonably foreseeable,” I added “because the person has received a prognosis of 12 months or less as to the specific length of time that they have remaining [this is a clear criterion, which is part of medical practice], taking into account all of their medical circumstances, the medical practitioner or nurse practitioner must”.

The other aspect that provides access to the second safeguard regime is the following: “whose natural death is not reasonably foreseeable, because the person has received a prognosis of more than 12 months as to the specific length of time that they have remaining, taking into account all of their medical circumstances.”

I'm adding a clarification to enable practitioners to make a prognosis, as they do every day. The concept of 12 months or less covers all cases of people who request medical assistance in dying at the end of life. If death isn't imminent, then we're talking about 12 months or more. If circumstances change, the person could also access this safeguard regime. We must strictly determine the two safeguard regimes by establishing whether or not they're 10 days and whether or not they're 90 days.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Thériault.

Mr. Maloney, would you like to speak to BQ-3, which is on the floor right now?

[James Maloney, Liberal, Etobicoke—Lakeshore, ON]

Thank you, Madam Chair.

I would like to thank Mr. Thériault for putting forward the amendment. I admire the rationale for doing so. We are always seeking to provide as much precision to things as we can, but there are times when doing so overly complicates matters, and unfortunately I think this may be one.

Reasonable foreseeability is not a new concept, and it's not a precise concept. In dealing with MAID, doctors are put in a position of having to assess time frames and, as we all know, time frames for end of life are never exact. Putting a doctor in a position where they have to deal with a 12-month cap is putting undue pressure on the doctor, and it's creating an artificial deadline.

If a doctor is put in a position where they have to render a decision with that time frame in mind, it might result in changing their decision so that it's complying with the precision requirement, but it's not a decision that's really capable of being that precise. That's not in any way going to benefit the patient, and it's not going to benefit the medical profession either.

Although I appreciate the amendment, and it's noble in its intent, it's putting way too much artificial pressure on practitioners who are going to be dealing with these situations. For that reason, I would oppose it.

[The Chair, Liberal, Iqra Khalid]

Thanks, Mr. Maloney.

I have Mr. Virani, Mr. Moore and then Mr. Thériault, and then I'll call the question.

Go ahead, Mr. Virani.

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

I just want to elaborate a bit upon what Mr. Maloney was saying. I think that sometimes it gets complicated and gets a bit muddled when we get so mired in these terms.

We have a regime under Bill C-14 that talks about a sort of an end-of-life regime. We have a decision about reasonable foreseeability in Truchon, which says that if you keep it to just an end-of-life regime, you are not actually promoting the dignity and autonomy of individuals, and therefore a change must be made.

The change that must be made is what's presented before us now in Bill C-7. It creates two tracks. There is a track where your death is reasonably foreseeable, and then there's the track where your death is not reasonably foreseeable. There is facilitated access when the death is reasonably foreseeable, and there are enhanced safeguards where a natural death is more of a long-term one, in what we call track two.

In trying to narrow down how you divide between a death that is reasonably foreseeable versus one that is not, I appreciate what Mr. Thériault is trying to do, and I'll echo the sentiments of Mr. Maloney. I appreciate the statements he made in the House. I appreciate his interventions in this committee. I know that he and his party believe very strongly in the model that Quebec has rolled out provincially and in ensuring that there is access that grants autonomy and dignity to individuals.

Where I'll differ with him is just this idea about demarcation, the 12 months as a demarcation, a line in the sand, so to speak, as to when something becomes reasonably foreseeable or not and determining whether you fall into track one or track two.

The reason for this is that everything I've learned through the course of this committee study, and everything I've learned in the consultations that I was privileged to be a part of in January and February, indicates that the medical practitioners who are involved in this very sensitive, very complex assessment are doing so with a lot of professionalism and with the care of the patient in mind. I remain strong in that faith that they will continue to execute their functions professionally. Allowing them to have the flexibility to make that determination rather than carving out a line is, to my mind, the best path forward in terms of ensuring consistency with the regime in the past but also making the constitutional changes that are required by the position of the court.

Simply for that reason alone, I think demarcating 12 months as a line in the sand would not be beneficial and, in some respects, I certainly wouldn't want the inadvertent consequence of limiting access to MAID for those who would otherwise be eligible, who otherwise had made an informed decision and were trying to make an autonomous decision, and impeding or limiting that autonomy.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Virani.

Mr. Moore, you are next on my list.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

An individual's ability to access MAID does not hinge on this particular amendment. This amendment, as I understand it, is to fill the legislative vacuum that is being created with this legislation. If we asked every member of this committee and everyone participating today to define someone whose death is reasonably foreseeable, we could get 32 different answers because this legislation doesn't get the job done. It's not precise. It's our job, wherever we're able, to provide precise direction, especially on a piece of legislation that is literally dealing with life or death.

Bill C-7 opens up Canada's assisted dying regime. Originally, under C-14, someone's death had to be reasonably foreseeable. Bill C-7 says that, no, your death does not have to be reasonably foreseeable in order to access MAID. This means that someone who is not dying, as we may think of, someone who may have 10, 15, 20, 30 years to live, is eligible to receive MAID under Bill C-7.

It is incumbent upon us, I believe, to try to be a bit more precise. We've seen scenarios where someone is given six months to live, two years to live. That happens all the time. These are the calls that doctors make. I don't accept that saying 12 months is somehow making any more difficult a situation than just throwing something up against the wall, which is what we're doing with reasonable foreseeability—no one knows what that means. In a country of over 30 million people, with doctors in all of our provinces and territories with decisions that have to be made that are literally life and death, we're saying, “We don't know what to say. You guys figure it out.” We could have grave inconsistencies throughout the country when it comes to which track someone would be on with regard to assisted dying. There are different safeguards on different tracks, so it matters whether someone's death is reasonably foreseeable or not as to which track they fall into.

I think this is a reasonable amendment. I think it enables us to do our job as legislators to have a bit more precision—quite a bit more precision—in the legislation that we're dealing with. It's for that reason that I will be supporting this amendment to define “reasonably foreseeable” as 12 months. I listened to the testimony as members did, Madam Chair. I've seen some of the submissions. There is no definition of what reasonable foreseeability is, and that, in my view, is not acceptable. It's for those reasons that I will be supporting this amendment.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

Monsieur Thériault, you're next on my speakers list.

[Luc Thériault, Bloc, Montcalm, QC]

I want to thank all my colleagues for their comments.

That said, Mr. Maloney and Mr. Virani, the purpose of the amendment is exactly the opposite of what you're arguing. I've spoken with doctors. Some doctors came and told us that this criterion was removed. They were very happy about this because it was very vague and made no medical sense.

This amendment doesn't address access to medical assistance in dying. It seeks to maintain the category of reasonably foreseeable natural death or natural death that isn't reasonably foreseeable. It seeks to maintain this category to ensure access to safeguards.

However, in the case of people who are terminally ill, doctors make prognoses. That's all they do. This tells them something. It makes their job easier on the ground. Practitioners want a benchmark.

People want to live as long as possible. In the event of terminal cancer, they also want to live at home as long as possible, until they can no longer remain there. Some even decide to die at home. In this case, it's very easy if they request medical assistance in dying.

We're nowhere near 12 months. This means that, with a period of 12 months or less, a person doesn't need to wait another 10 days. They would have access to the safeguards for people whose death is reasonably foreseeable. The amendment proposes the elimination of the 10-day reflection period and exceptions to the requirement to provide final consent. At the very least, the doctor could justify the fact that the request was made under circumstances of 12 months or less.

This isn't about access to medical assistance in dying. You're mistaken when you interpret it in this manner. For the rest, it's obvious. If natural death isn't reasonably foreseeable, usually the prognosis will be 12 months or more, as in the case of Nicole Gladu.

The degenerative disease isn't yet covered by the bill. People want to live as long as possible. They don't want to die. If they're suicidal, they're treated. They're given antidepressants and they'll continue to live. They want to live until life becomes unbearable. They'll then seek care and say that they don't want to end up in this condition. The 12-month or longer period covers all degenerative diseases as well. For example, a person with very advanced amyotrophic lateral sclerosis, or ALS, would fall into the 12 months or less category. I think that doctors will be able to justify their prognoses and practices.

As a result of a totally vague criterion, doctors may or may not apply the safeguard without having to justify anything, by saying that death is or isn't foreseeable. It seems that we must be rigorous. This rigour has been called for, in particular by Dr. Naud, one of the Quebec practitioners with the most experience in this area. Go reread his presentation.

That's why I disagree with you, Mr. Maloney and Mr. Virani. I agree with Mr. Moore. The bill is supposed to provide more clarity, and the amendment does this.

[The Chair, Liberal, Iqra Khalid]

Thank you, Monsieur Thériault.

Madame Findlay, I have you next on my list. Go ahead.

[Kerry-Lynne Findlay, Conservative, South Surrey—White Rock, BC]

Thank you.

It seems to me that this is actually a very important amendment. We shouldn't get wrapped up in trying to keep the bill exactly as written if these amendments being put forward actually improve it.

We heard testimony from doctors—I heard it very clearly—saying that this is very problematic. A general comment on reasonably foreseeable or not reasonably foreseeable.... What does that mean?

This isn't just like any other type of medical care. We're really not talking about a therapeutic option here. That's what the doctors told us.

I'm mindful, Madam Chair, that I heard our colleague Mr. Virani say something to the effect that perhaps the mover is married to the Quebec model. I'm from B.C., so I don't exactly know what that Quebec model is, to be honest. We heard from doctors across Canada—not just from doctors from Quebec—who were very concerned about the lack of clarity in the bill around this particular issue. I would like to think that as we sit here debating end of life, we are also thinking about the life one lives up to that moment and the right of access to meaningful care, which is interwoven in a lot of these amendments being put forward.

Doctors make these decisions all the time. Just to be personal for a moment, my brother died of cancer at 48. When we went to the doctor, they told us he had 30 to 90 days and he should put his affairs in order. He lived 58 days. I think the doctors have a very good idea when they're dealing with their patients and what that patient is looking at in terms of time and in terms of what can be offered or not. That is all part of those very sensitive discussions with somebody as to the intolerability of their situation or the end of life—how soon or not it may be.

My take on the testimony that we heard is that the doctors—the medical professionals—were saying that we are introducing something here that speaks to them about how they carry out their health care decisions and health care options, but we're not giving them the parameters that would help them, either. It seems to me that it's not really just an arbitrary number. It's an amount of time that seems reasonable, where it allows a revisiting and a review with that patient. It isn't speaking to the 90 days that is in the bill now. It doesn't take away from that in any way. It does give those health care professionals who are dealing with their patients some sort of parameter and something to hold on to.

In that respect, I thank Monsieur Thériault for bringing forward something that I think is needed and that the health care professionals are asking us for. We shouldn't abandon the field in that respect. We should give them something they can work with and that is in itself reasonable and not unduly restrictive.

I would be supporting the amendment.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thanks for that reaffirmation, Madame Findlay.

We'll go now to Mr. Lewis, Mr. Garrison and Mr. Cooper, and then we'll call the question.

Go ahead, Mr. Lewis.