Evidence of meeting #2 for Medical Assistance in Dying in the 45th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was case.
A recording is available from Parliament.
Liberal
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Thank you.
Professor Lemmens, Professor Downie stated that it's somehow misleading and out of context to conclude that MAID for mental illness fell outside the scope of the Carter decision, but the only paragraph that references psychiatric disorders, paragraph 111, reads that:
Professor Montero's affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders....
It says “would not fall within the parameters suggested in these reasons”. Would you care to comment?
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
I've already explained it. As Professor Downie says, in the time limits of this discussion, it's hard to give details about constitutional arguments.
We have The Manitoba Law Journal, in which we discuss in detail the various cases—I can share them with the committee—and look at the arguments for why we think the Carter decision actually did not include mental illness and why it's fair for Parliament to state that irremediability, based on the evidence psychiatrists will provide, does not match mental illness. In a way, Parliament has simply looked at the concept of an irremediable medical condition.
I want to emphasize again that I find it strange how people forget that the Carter decision emphasized the need for stringent safeguards and balance, and explicitly recognized the role of criminal law in protecting life. I want to emphasize that.
There is certainly a difference of interpretation of the Carter decision in that context.
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
Before I turn it over to Mr. Patzer, with respect to E.F. and Truchon, neither is a binding decision. Is that right?
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Are you asking for a comment on the E.F. case?
Conservative
Michael Cooper Conservative St. Albert—Sturgeon River, AB
It's one decision. It's an Alberta Court of Appeal decision. The Truchon decision is a Superior Court of Quebec decision. They're not binding nationally.
Professor and Scholl Chair in Health Law and Policy, Jackman Faculty of Law, University of Toronto, As an Individual
Yes, but they were taken at a time when there was no legislation. If you look at constitutional scholars who coined the concept of constitutional dialogue, in a later publication they actually accepted the idea. Professor Hogg, for example, accepted the idea that the first parliamentary law on MAID was an acceptable example of the dialogue between the Supreme Court and the legislative.... I would leave it at that.
Liberal
The Joint Chair Liberal Marcus Powlowski
Mr. Patzer, I'm afraid we've run out the clock.
That brings us to Dr. Jaczek.
Liberal
Helena Jaczek Liberal Markham—Stouffville, ON
Thank you, Chair.
Professor Downie, we heard from Dr. Gupta earlier in the first panel. From what I heard when she gave her testimony, she described a process of assessment that really made a request for MAID a last resort. Every avenue was going to be looked at in terms of alternative treatment, etc. Other assessors would be consulted, etc.
You have also assured us that you feel the regulatory framework is sufficient. However, Dr. Lemmens, in response to Senator Martin, gave us an example where the full assessment was perhaps not done.
Is there anything that should be required in that assessment that could in some way be legislated? Is there some sort of regulatory framework that might be required?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
It's extremely difficult to comment in relation to that case, because of what I said about the MDRC and it not being a finding. They don't have all the facts in front of them. They're not making statements in order to make findings of fact about the case, so it's hard. I can't say what would have been better, because I don't know that what's being described is accurate.
However, do people need more? I think we have the guidance. We have the training program. We have the fundamental clinicians' obligation to do only that which they're capable of doing. They have an obligation to follow the law, which requires this careful analysis of capacity and voluntariness.
The final thing I would say, going back to the point about trust, is that clinicians take this extremely seriously. They are very careful, because they don't want to provide MAID to someone for whom something could be done such that they will no longer want MAID. That is actually a very important safeguard in our system, and it was recognized by Justice Smith at the trial level in Carter that we already trust clinicians with so much, so why would we suddenly say they're not trustworthy to ensure that they do careful assessments and so on? They do palliative sedation. They withhold and withdraw life-sustaining treatment. They do all these things without one iota of the oversight and regulation of MAID. It really throws a hand grenade into medical practice to suggest that we don't have enough, based on what we have.
Liberal
The Joint Chair Liberal Marcus Powlowski
Your time is pretty well up.
I'll move on now.
Mr. Thériault, you have the floor for two minutes.
Bloc
Luc Thériault Bloc Montcalm, QC
There are clearly different interpretations of the case of Truchon v. Procureur général du Canada and the Carter decision.
Throughout the history of Canadian law, it has always been the courts that have settled such matters. It was the Supreme Court that ruled on the matter and called upon lawmakers to ensure that the law complied with the Canadian Charter of Rights and Freedoms.
In the meantime, why would it be appropriate at this point to ask the Supreme Court to clarify this issue and rule specifically on it? Could it clarify its position, and could the government make such a request? Would that not put an end to the interpretations suggesting that the Truchon case did not comply with the Carter decision and that the latter does not say what it says?
Nothing has been done on the legal front for the past three years.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
They could. They chose not to the last time around. I don't know whether they would make that same decision now. There is also a case in front of the courts right now, because after the last extension, it was clear we had to go to court.
The exclusion is being challenged in Ontario at the moment. That will eventually end up in the Supreme Court of Canada. Even if the government does.... Doing the reference would be faster, but the case will get up to the Supreme Court of Canada. This will be answered eventually.
Bloc
Luc Thériault Bloc Montcalm, QC
What concerns me is that we are placing the burden on people who are already struggling with an illness, and that they are left to defend themselves before the Supreme Court. From the outset, this is how Canadian law has developed on the issue of medical assistance in dying.
Parliamentarians have never taken an approach like that in Quebec, for example, where they took two years to pass a law and took the time to listen to everyone.
Here, we are told: this is the Supreme Court’s deadline. Since parliamentarians have not done their job, the Court is telling them to do so and to ensure that an amendment to the Criminal Code is introduced that complies with the Charter.
The burden of having to appear before the Supreme Court is being placed on the patient, and that, in my view, is unacceptable.
Liberal
The Joint Chair Liberal Marcus Powlowski
With that, we've run out of time, so there's no opportunity to respond.
We go next to Senator Moodie for two minutes.
Senator, Ontario, ISG
Thank you. My very quick question is for Professor Downie.
You have made the case before that the constitutionality of MAID was settled by Carter and affirmed by E.F. and Truchon. Please make that case again for me, because I'm struggling with the idea that a question of interpretation allows us to wander from the facts of the case. Help me understand what you believe to be the truth in this matter.
The second thing I'd ask is this: Do you believe that physicians always agree with each other about diagnosis in physical medicine, treatment or planning for physical conditions, and conversely, do psychiatrists agree in some cases about diagnosis and treatment?
As a neonatal intensivist, I can tell you we have not agreed on many cases that I've been involved in. Please help me here.
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
I'll take the quick one first. They do not always agree with respect to physical conditions in terms of the diagnosis, prognosis and treatment, and they sometimes agree in the context of mental illness about diagnosis, prognosis and treatment. This does not create a distinction between physical and mental. It doesn't justify treating them differently. We have complex cases everywhere.
Regarding the truth of the matter of Carter, we've gone back and forth. You've heard the same thing more than once from both sides on the interpretation of Carter. The thing I would add to what was presented is that Justice adopted the interpretation that I have advanced. The government has already accepted that Carter stands for the principle that “grievous and irremediable medical condition” includes mental illness. It has accepted the Carter and the Truchon decisions, as the arguments were good. They're not binding, granted, but it said they were good. It agrees with them, so it has adopted that position. I take that as a reasonable starting point for the government not then turning around and excluding any further.
The only extra justification you can have with respect to Carter is in terms of a temporary exclusion, and what I'm pointing out is that that's no longer valid.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Professor Downie.
Senator Wallin, you have two minutes.
Senator, Saskatchewan, CSG
I know that this may not be specifically your area as an academic and a lawyer, but my colleague here raised the question of choice. There are so many issues on which the governments of the day say that this is a question of personal choice—I'm thinking of abortion—and that a person should, in consultation with their doctor and maybe family members as well, come to those conclusions. I see parallels, of course, with this issue. This is a matter of choice. There is no circumstance that I can see where MAID is mandatory for anybody. You must ask for it. You must be counselled six ways to Sunday.
Can you talk about that, and what that means in a legal framework?
Professor Emeritus, Faculties of Law and Medicine, Dalhousie University, As an Individual
It's very clear that nobody ever—ever—would get MAID that they didn't want. That's clearly excluded in the law. No clinician would ever do that, absolutely.
Your point about abortion is important, because we had to get abortion rights through the courts too. It's telling. As well, abortion came in Quebec. They were leaders on that. They were leaders on same-sex marriage. They were leaders on MAID. It's through the consultative processes they do that they get there.
I think I would point you back to, in fact, the abortion decision in Morgentaler, where the idea of the freedom to make choices that are fundamental to our lives is expressed incredibly powerfully by Chief Justice Dickson and Justice Bertha Wilson. That was a long time ago, but that is a through line in Canadian constitutional law. It's a fundamental commitment to respecting people's autonomy. Yes, we protect the vulnerable, but we must respect autonomy.
Liberal
The Joint Chair Liberal Marcus Powlowski
Thank you, Professor Downie and Senator Wallin. We are out of time.
With that, I'd like to thank the witnesses for appearing before us and for the very worthwhile testimony.
We're going to briefly suspend. Then we have to come back briefly to discuss what we decided in subcommittee. I believe the Conservatives also have a motion.
We're suspended....
Senator Wallin.
Senator, Saskatchewan, CSG
I have a couple of questions that I'd like answered, but are we going in camera? What is the procedure here?