Justice Committee on Nov. 17th, 2020

[Chris Lewis, Conservative, Essex, ON]

Thank you, Madam Chair.

The broad prognosis of 12 months or more replaces “natural death not foreseeable”, and a prognosis of 12 months replaces “natural death foreseeable”. Predicting prognosis for cancer and non-cancer illness out at 12 months, or many months to years, is very complicated clinically. Doctors get it wrong more often than they get it right, due to advances in treatments. They do not yet understand how that impacts the course of the disease. For this reason, most other countries and states have limited assisted death to prognosis of less than six months, including Victoria, Australia; Western Australia; Oregon; Washington; and, most recently, New Zealand.

Today, doctors are much better at prognosticating when someone is approaching their last short months of life. There is a huge body of medical evidence in the literature that speaks to the issue of prognostication. However, having some parameters around what foreseeable and not foreseeable death is would be a step forward for Canada. The courts have, to date, interpreted that reasonably foreseeable natural death does not need a specific time requirement, and people even with a decade of life have been deemed to have foreseeable death.

We had the precedent-setting Justice Perell ruling in the Ontario Superior Court, which approved a woman with osteoarthritis based on age alone, 77 years, who a MAID doctor estimated would have lived another 10 years. This ruling then led Dr. Wiebe to approve and provide MAID to a 68-year-old woman, Robyn Moro, with Parkinson's disease, whom she had declined based on a prognosis of five to 10 years.

Madam Speaker, we've had a lot of discussion, and we've had a lot of great witnesses come forward. As our other colleagues have mentioned here today, it's very difficult to try to play life and death, especially within 90 days. I thank the Bloc for bringing this forward, and I will be supporting this amendment.

Thank you, Madam Speaker.

[The Chair, Liberal, Iqra Khalid]

Thank you. It's “Madam Chair”, not “Madam Speaker”.

Mr. Garrison, you're up next. Go ahead, sir.

[Chris Lewis, Conservative, Essex, ON]

Maybe one day it will be “Madam Speaker”, Madam Chair.

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

Thank you very much, Madam Chair.

I appreciate the motivation behind Mr. Thériault's amendment. I do take cognizance of the fact that he is pointing out that the 12 months is about which of the two tracks that are specified in the bill to have access to.

However, my concern is that there is no medical dividing line at 12 months, so I think this inadvertently introduces an element of arbitrariness. Also, while it may be difficult for us to decide as legislators what “reasonably foreseeable” means, I think that is the job of clinicians. I think they will do a good job of deciding that.

As well, by putting in the 12 months, we risk prolonging the suffering of some people by forcing them into the second track, as I said, inadvertently. When the goal here is to protect the autonomy of decision-making of patients about the way their lives end and to prevent unnecessary prolonging of suffering, I think we're introducing an element of risk here of doing the opposite. Therefore, I will be opposing the amendment.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

I have Mr. Cooper next.

Go ahead, sir.

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

Thank you very much, Madam Chair. I'll be very brief.

Let me simply say that I do support the amendment. Prior to the Truchon decision, there were inconsistencies in terms of how “reasonably foreseeable” was interpreted, particularly in the province of Quebec versus the rest of Canada. In the province of Quebec, “reasonably foreseeable” tended to be interpreted in an end-of-life context, and that in part has to do with the provincial legislation that the National Assembly had passed prior to the introduction of Bill C-14. That was not the case in other parts of Canada.

I would submit that some clarity was required, having regard for the vagueness of that term. However, given the fact that Bill C-7 puts forward a two-track approach, I would submit that clarity is now essential to ensure, to the greatest degree possible, an even application of law in all jurisdictions of Canada. On that basis, I support the amendment.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Cooper.

Madame Findlay, did you have something to add to your prior comments that is new?

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

Yes, I do.

Through you, Madam Chair, to other members of the committee—and perhaps specifically to my colleague from the NDP—is there a length of time you would be comfortable with? What we're seeking here, I believe, by supporting an amendment like this, is some greater clarity. I'm just wondering if you see that greater clarity as a necessity at all. If so, would a different time frame be reasonable to you?

[The Chair, Liberal, Iqra Khalid]

Just to clarify, Madame Findlay, was that question for Mr. Garrison or for the departments that are here as witnesses today?

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

It was actually for Mr. Garrison. I'm just trying to get some dialogue here so that I can understand it. It's hard when we're each making our little comments.

[The Chair, Liberal, Iqra Khalid]

I see that a whole bunch have raised their hands now, and Mr. Garrison is one of them, so he will in due time answer your question, I'm sure.

Mr. Virani, you're next on the list. Go ahead, sir.

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

To be very brief on that point, I think the fact that it's difficult to pin down a timeline just points to the fact that these need to be evaluated on a case-by-case basis between the doctor team and the patient. It will be unique in every single situation.

Reasonable foreseeability is done as an assessment by the medical team, the professional team that evaluates the individual circumstances of the particular individual. Trying to pin down any particular timeline, whether it's 12 months or some other time, would not be a useful exercise, from my perspective.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you.

Mr. Garrison, go ahead.

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

Thank you, Madam Chair.

Mr. Virani essentially restated my arguments. I do believe that attempting to legislate a particular timeline between the two tracks is not the way for us to proceed. I agree with him that, as I said in my earlier remarks, this is a decision for clinicians to make. It is not for us to try to set an arbitrary date that has no relationship to medical practice in the law.

Practice will evolve as we go forward. The professional associations in each province will give guidance to physicians if any concerns or problems arise from the concept of reasonable foreseeability. I do not believe we should select any particular number of months to insert into the bill.

Thank you.

[The Chair, Liberal, Iqra Khalid]

Thank you, Mr. Garrison.

Mr. Thériault, the floor is yours.

[Luc Thériault, Bloc, Montcalm, QC]

I'll make one last point to try to convince Mr. Garrison, because the amendment covers everything.

It isn't complicated. A person whose prognosis is 15 months doesn't request medical assistance in dying. It doesn't exist. If they make the request, the period between the first assessment and the provision of medical assistance in dying set out in the bill is 90 days. We aren't changing anything. We're simply specifying that a different safeguard exists.

Most people who die of terminal cancer don't request medical assistance in dying 12 months beforehand. If they do, they can make advance request arrangements and take the proper steps to be ready when the request comes up. That way, the doctor wouldn't need to wait 10 days and to ask the patient to provide consent again.

The concern that a patient could be harmed comes from a misunderstanding of the amendment. Doctors clearly need it. They make prognoses every day to justify their practice. Otherwise, try to prove to me that death is reasonably foreseeable and tell me on what basis. Without this amendment, no prognosis would be required. This could complicate matters. It could be related to the arbitrary discretion of the medical practitioner. By including this in the bill, no one is harmed. In everyday life, in practice, no one wants to die early. If, after a diagnosis, a patient begins to experience suicidal tendencies, we know very well that they'll be treated.

In everyday life, people must prepare for their final exit. Palliative care is comprehensive support until death.

I don't know why you're resisting and thinking that patients will be harmed, when in fact the opposite is true.

[The Chair, Liberal, Iqra Khalid]

Thank you very much for that, Mr. Thériault.

We'll go on now to Mr. Moore.

Go ahead, sir.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Madam Chair.

I'm just being cognizant of the time. I'm not trying to have the last word, but I think we're pretty well at the end of the time allocated for today's meeting. I'm happy to pick this up on Thursday, or I could finish asking my question.

[The Chair, Liberal, Iqra Khalid]

I'd like to get through the list and perhaps we can vote on this before we adjourn today, just so the debate is still fresh in our minds. It just makes sense for us to call the question before we adjourn.

I only have three people on the speakers list. Let's quickly get through them, call the question, and then we'll start fresh on CPC-2 on Thursday. Is that amenable to everybody?

Mr. Maloney, I have you next.

[Rob Moore, Conservative, Fundy Royal, NB]

Actually, that doesn't work for me, Madam Chair. I have another call to be on now.

[The Chair, Liberal, Iqra Khalid]

Sorry, Mr. Moore, actually there are no more hands raised, so I can call the question right now. It will be 30 seconds, and then you can get on your call, if that's okay.

[Rob Moore, Conservative, Fundy Royal, NB]

Unfortunately, I still want to be able to speak to it, but I can't speak to it now that the meeting is scheduled to be over and I'm supposed to be on another meeting. I'd like to speak to it when we start our meeting on Thursday if that's possible.

I think it's an important amendment, and I think it's important to discuss, but this meeting is scheduled to be over and I'd still like to speak to it.

[The Chair, Liberal, Iqra Khalid]

Mr. Moore, we have a couple of options before us. We've had quite a healthy and extensive debate on this amendment. I would like us to be able to vote on this while it's still fresh in our minds. As you said, it is a very important amendment.

There are a couple of options. You can move to adjourn the meeting and we'll go to a vote on whether to continue, or we can hear from you about your concerns and then exhaust the speakers list and vote on this before we adjourn the meeting. I give it to the committee to decide how they'd like to handle this.

Mr. Moore, you've disappeared from the screen. Are you okay?

While we wait to hear from Mr. Moore, I'll continue down the speakers list.

Mr. Zuberi, go ahead.

[Sameer Zuberi, Liberal, Pierrefonds—Dollard, QC]

Madam Chair, I think we've had a good discussion about this amendment. If Mr. Moore were here, I would be leaning towards calling the question since we did have a good discussion on this.

I'll call the question.

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

I have a point of order, Madam Chair.