Justice Committee on Nov. 17th, 2020

[Philippe Méla]

Yes, I provided the advice to the chair that the amendment be ruled inadmissible. After that it's up to the chair to decide if it is really inadmissible or not, and then the ruling is issued.

After that, once the ruling is issued, the proper course of action, if any, would be to appeal the decision of the chair, as Mr. Garrison did, and then proceed to a vote. If the decision is sustained, then the amendment remains inadmissible. If it's overruled, we proceed to a debate and to the vote, eventually, on the matter.

[The Chair, Liberal, Iqra Khalid]

Thank you very much.

Does that clarify it for you, Mr. Maloney?

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

I suppose, but if, in your opinion, the original proposal was inadmissible—I understand we voted on it—is there a further step to be taken now to clarify your opinion? What's the remedy from here?

[The Chair, Liberal, Iqra Khalid]

Given that I made a ruling and it was challenged and then voted on, and my ruling was ultimately denied by the committee members, now what we are doing is debating NDP-1 on its merits.

I encourage members to rely on the department officials to also seek clarification as to what NDP-1 does.

I see Mr. Virani is next on the speakers list. Go ahead, Mr. Virani.

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

Thank you for that, Madam Chair.

My understanding is that when we go back in the medical assistance in dying regime to when we enacted Bill C-14, we find there was a subsection added to the Criminal Code. We added subsection 241(5.1) to section 241, and that sets out the offences of counselling and aiding a person to die by suicide. We did that under Bill C-14 in 2016. What that subsection does is clarify that it's not an offence for various health care practitioners, including some who cannot provide MAID, such as social workers, to provide information to a person about the lawful provision of MAID. This amendment seeks to specify that no offence is committed when such information is provided to a person who didn't ask for that information in the first instance.

What I understood is that because Bill C-7 doesn't propose to amend section 241 of the code, as such it is likely outside the scope of the bill. That is, I think, what you were driving at with your ruling. However, given that your ruling has been overturned by the members of the committee, I'm happy to debate the substance of it.

Welcome to the Department of Justice officials and the Department of Health officials. I'll make some submissions, but I'll also invite the lawyers from the Department of Justice to opine on it as well.

The first point is simply that we all understand the important work that all of the practitioners are doing, be they nurses or physicians. That should be stated on the record. We appreciated the submissions from the Canadian Nurses Association in that regard. Medical regulators or colleges are the ones to turn to when reconciling the competing interests from a medical practice point of view. That's the first point.

However, here we're dealing with the criminal law, and that's what Bill C-7 is all about. From my perspective, there's currently no current problem to address because when you trigger the criminal law, it's not actually the providing of information but the intention of the person who is doing the providing that is at issue. Merely providing information about MAID one way or the other doesn't amount to counselling or abetting somebody to die by suicide. Counselling or abetting somebody to die by suicide requires an intention to encourage or persuade someone to die by suicide or MAID, whether or not they actually carry it out, which is important. Whether or not a patient requested information about MAID is not directly relevant to the guilt or innocence of somebody who provides that information. The intention of the person who provides the information is the critical factor.

On that basis, I don't think this amendment is addressing an issue that arises properly under the scope of the criminal law as it is currently constituted, because it is about the action of the individual as opposed to the intent of the individual. The intent of the individual is also critical to the evaluation of the crime, if a crime is deemed to have been committed, and that crime can be committed independently of whether the person actually passes or not.

Those would be my perspectives. I'm wondering if Ms. Klineberg or Ms. Quesnel might want to weigh in on this from a departmental perspective.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Virani.

To the department, could you please comment?

[Joanne Klineberg, Acting General Counsel, Department of Justice]

Yes, thank you very much, Madam Chair.

From a Department of Justice point of view, we would agree with the analysis just provided by Mr. Virani and add a few small nuances to it. I think we would say that it may, in fact, give a false impression to some practitioners that they are able, in any circumstances, regardless of what their intention is, to share that information, so there's one danger in making an amendment that is not legally necessary and doesn't actually change the scope of the offence because of the requirement for an intent to persuade or encourage.

The other concern would be that if the medical regulators take up this issue and set down some clear rules, there would be the potential for those rules to come into conflict with what is in the Criminal Code. That might be another consideration to take into account.

[The Chair, Liberal, Iqra Khalid]

Thanks very much for that.

I have Mr. Moore next on the speaking list. Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I guess I had raised my hand back when the question was raised about how we proceed in matters that have been ruled out of order. I think that's been dealt with, but I would say, as always, that it's on a case-by-case basis and a ruling-by-ruling basis.

Speaking now to the amendment that's been moved, maybe I could ask Mr. Garrison his thoughts on it. I was quite profoundly impacted by the testimony of Mr. Foley, who appeared at our committee. I don't know if all members have had the opportunity to listen to the recordings that he made as doctors were basically, as it sounded to me, encouraging him to consider MAID in the context of what it was going to cost him to stay in the hospital. They said in the recording, “Look, the per diem rate for you to stay at this hospital is $1,500 per day.”

Recognizing that the committee has decided to consider this particular amendment, I just cannot contemplate a situation in which we would want to say that the information could come whether or not the person requests the information. I think someone would be in a troublesome area there. I don't think we want to send a message that even if a person expressly does not want to consider MAID, health care providers are going to be in a position to keep bringing it up, and that's what appears to have happened with Mr. Foley in this recording. I don't know if Mr. Garrison heard the same testimony I did, but this amendment, unless there's a further explanation he could provide, runs completely counter to the very moving testimony of Mr. Foley, who did a great job presenting at our committee. Maybe we can get some further clarification on that, but my inclination would not be to support this particular amendment.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Moore.

Luckily, Mr. Garrison is next on the speaking list. Go ahead, Mr. Garrison.

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

Thank you very much, Madam Chair.

I just need to add one preface here, as you did not give me a chance to state the reasons for my challenge to the chair.

I will point out that section 241 of the Criminal Code is in fact amended several times by Bill C-7. That was my basis for suggesting that additional amendments to section 241 should be in order.

On the question of whether or not this is a necessary amendment, I know the narrow legal arguments saying that nurses or other health professionals or social workers are covered under the strict letter of the law. However, it is also true that we've had many accusations made about specific cases and about the role of health care professionals in discussing medical assistance in dying with patients.

In response to Mr. Moore, I would say that I am very cautious about judging evidence presented before the committee that deals with specific cases when we only hear one of the parties to that case. If in fact there are serious allegations, as have been made several times before the committee, of inappropriate actions by health care professionals, those should have been raised with medical professional bodies or in extreme cases with the police, and dealt with in a way that allowed a chance to have both sides of the story considered by an impartial body.

Again, I believe that there is a risk of constraining the conversations that health care professionals, including nurses and psychiatrists, can have with their patients in the way that the bill is worded now, and that this amendment is simply a further clarification of the ability of professionals to discuss fully the options with their patients.

[The Chair, Liberal, Iqra Khalid]

Thanks for that, Mr. Garrison.

I'm going to turn to our legislative clerk to clarify what portion of Bill C-7 is being amended in the Criminal Code.

[Philippe Méla]

Thank you, Madam Chair.

The bill amends section 241.2, which is a different section of the Criminal Code from section 241, and sections 241.2 and 241.31, and that's it. Those sections of the Criminal Code are different from section 241.

[The Chair, Liberal, Iqra Khalid]

I have Mr. Kelloway next on the speaking list.

[Mike Kelloway, Liberal, Cape Breton—Canso, NS]

Thanks Madam Chair.

Hello, colleagues and officials.

From a department point of view, are there are other elements—beyond what we've heard through Mr. Virani's question and answer—that make this inadmissible? I'm curious to do a deeper dive on other elements that haven't been brought up so far that would bring to light the nature of the opinion being inadmissible.

[Joanne Klineberg]

I don't think the department would have anything to offer on the question of the inadmissibility of the motion.

[The Chair, Liberal, Iqra Khalid]

I have Madam Findlay next on the speaking list.

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

I have a question and then a comment.

With respect to the question, on the discussion we just had around admissibility, I want some clarification. It relates not just to the present amendment but could relate to others now and in the future.

I would have thought that when we are dealing with a section of the Criminal Code, it would be the whole section. Are you telling us that unless an amendment relates to the specific subsection within a section, we cannot entertain it? That is somewhat of a surprise to me.

[Philippe Méla]

Yes, you would be right in saying that, when a section is opened, you can deal with any part of the section. Unfortunately, section 241 is not opened by the bill. There are other sections. Section 31 is a different section of the Criminal Code. It's not a subsection of section 241. If you look at the title in the Criminal Code, section 241 is called “Suicide”. If you go to the next section of the Criminal Code, which would be section 241.1, the heading for that one is “Medical Assistance in Dying”. They are two different sections. Section 241 is not being dealt with by Bill C-7.

[The Chair, Liberal, Iqra Khalid]

I hope that answers your question, Madame Findlay.

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

Yes, it does.

My concern is along the same lines as Mr. Moore's.

We also heard testimony from Taylor. She's a young woman in her twenties. She ended up being diagnosed as having pneumonia. The normal course of treatment for that would be oxygen, yet the practitioner was discussing MAID with her rather than giving her the oxygen she needed for her pneumonia. In any other normal circumstances, a young woman presenting herself to emergency in her twenties would not have to go through all that before she was given oxygen for something like pneumonia.

Mr. Foley's testimony was very compelling as well, but in some ways I was more shocked by what Taylor had to say. She was someone who certainly did not want to enter into the discussion at all. She wanted treatment for her current situation and eventually got it.

I'm very concerned about there being no onus on any practitioner in the sense that.... I don't think they should bring it up. It should be patient-initiated. If it's patient-initiated, then there are rules around the form of the conversation and the nature of that engagement. When someone is coming in to the care of caregivers in the health system for something totally unrelated, yet is being judged by that practitioner as someone who maybe should just end their life, I find that very difficult.

This is not an amendment I could support for that reason.

[The Chair, Liberal, Iqra Khalid]

Thank you, Madam Findlay.

I have Mr. Moore next on the list.

Go ahead, Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I guess some of the commentary has been not on the amendment itself but on the process we go through if an amendment is ruled out of order. I would like to get some clarity on this maybe from the legislative counsel, but ultimately this committee decides what amendments go through irrespective of that ruling if the ruling is overturned. I don't know if it's an attempt to maybe revisit it or to reargue it, but ultimately if the committee says in spite of the chair's ruling we would like to deal with this amendment, then it's within the committee's power to do so. Is that a correct understanding?

[The Chair, Liberal, Iqra Khalid]

You're absolutely right, Mr. Moore, but I will pass it on to Mr. Clerk to give more information.

[Philippe Méla]

Thank you, Madam Chair.

Yes, you would be right, Mr. Moore. It's always the prerogative of the committee to decide what the committee wants to achieve and do, regardless of the rules. However, any amendments that are ruled inadmissible in committee would end up in the report that would be presented to the House for the reprint of the bill. If a member would rise on a point of order in the House at that point before the start of report stage, the Speaker would probably come to us and ask the same question regarding the amendment. Is the amendment inadmissible or admissible?

Of course, we would give the same analysis that we provided to the chair of the committee to the Speaker of the House. Without presuming what could happen in this case, what could happen and what has happened in the past is that the Speaker of the House could simply rule that the amendment was indeed inadmissible and still is at report stage, remove it from the report from the committee and order a new reprint of the bill. The amendment would therefore be eliminated from the bill. That's the second step past committee stage.