Physician-Assisted Dying Committee on Feb. 2nd, 2016

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Senator Seidman.

[Judith G. Seidman]

Thank you, Chair. I will defer my time to Senator Joyal, if I may.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Yes. We have time for both of you, actually, for about four minutes each, if you'd like.

[Judith G. Seidman]

I'll still defer my time to Senator Joyal.

[Serge Joyal]

Thank you, Chair. This an example of how we are independent in the Senate and non-partisan.

Mr. Russomanno, I would like to come back to the definition of a hybrid offence. The Criminal Code contains a certain number of hybrid offences. Could you explain to us, to the members of the committee, the principles that preside over a hybrid offence versus an indictable offence? In other words, what are the substantial elements that define a hybrid offence in comparison to an indictable offence?

[Leo Russomanno]

For an indictable offence, there is no time limitation as to when the alleged offence occurred. It could have been historically years earlier. For a summary conviction, or a hybrid offence that allows for the possibility of a summary election, it would have to be six months since the date of the alleged offence. I should back up and say that, for a hybrid offence, the crown has the power to decide whether to prosecute by way of summary conviction or by indictment. A straight indictable offence is just simply that; it's indictable. The other limitation on a summary conviction offence is that the maximum sentence is 18 months, and that's only for a prescribed few offences.

Procedurally, there are other limitations with summary conviction offences, in that they are tried in the provincial court. In Ontario, it would be the Ontario Court of Justice, and there's no right to elect a judge and jury trial.

With some exceptions, for indictable offences there is a right to elect the mode of trial with a preliminary inquiry or a trial by judge and jury. Of course, there are exceptions in the law, but those are the broad differences between a hybrid offence, which allows a choice, and a straight indictable offence.

[Serge Joyal]

You don't see any circumstances in relation to physician-assisted death for which a offence can be created that is different from the one that the courts provide now in relation to section 241?

[Leo Russomanno]

Do you mean a different offence that does not have the same elements? I don't see what a different offence would look like.

I would say that given the legislative objective of protecting the vulnerable from being in a state of weakness, as the Supreme Court puts it in Carter, in regard to being coerced to commit suicide, that's a very serious offence. With the commensurate mens rea, that's a very serious offence, of course, because a physician in that context would be bringing about that person's death without their consent.

Again, I go back to my earlier comment that this is not really different from the offence of murder. It carries the same elements: the causation, substantial contributing cause of death, and the specific intent to bring about that person's death. I'm not sure if there would be room for another criminal offence and I'm not sure that the CLA would really be in favour of creating more criminal offences to criminalize the conduct of individuals in this context.

[Serge Joyal]

In relation to the role of the College of Physicians and Surgeons of Nova Scotia, when you conduct inquiries in relation to professional negligence, what makes the distinction between professional negligence, which in some cases might be very important in terms of consequences for the bodily integrity of the person, and a Criminal Code offence?

[Dr. Douglas Grant]

With respect to the discussion you were having with Mr. Russomanno, I would worry that the contemplation of a hybrid-type offence, a watered-down criminal charge would have the effect of chilling physicians from providing this service. It might act as a deterrent to consider getting into this realm of practice.

The colleges often deal with complaints and conduct investigations that may overlap with the criminal sphere. There are times when there are positively articulated obligations of the college. For instance, if we see anything that involves sexual abuse of a minor, we immediately, perforce of statute, involve law enforcement. We would need clear direction about the Criminal Code provisions and we would adhere to them.

I can't speak for most of the colleges but I can tell you that in Nova Scotia we have an effective, close working relationship with law enforcement. If there's a matter that seems on its face potentially criminal, if we have reasonable grounds to suspect there's criminal activity, we make a determination based on the immediate public safety, which may involve suspending a doctor's licence on an interim basis, informing the crown, and then waiting for the crown to conduct a criminal investigation. The parts work fairly smoothly.

[Serge Joyal]

So you have the experience of that kind of co-operation—

[Dr. Douglas Grant]

Sadly, sir, yes.

[Serge Joyal]

Of course, nobody would want to see that happening.

You realize, and I'm sure that you do, we are here in uncharted waters and we want to be sure that the legal system, as it is now, and the professional system provide for the safeguards that would be needed in the case of the implementation of what we are seized to legislate on at this stage.

[Dr. Douglas Grant]

I couldn't agree with you more, sir.

[Serge Joyal]

Those are the four minutes that Senator Seidman gave me.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

There were six and a half minutes, senator. Seven minutes.

[Serge Joyal]

Okay. Thank you.

Did you say, Dr. Grant, that you are a family doctor?

[Dr. Douglas Grant]

I was, yes.

[Serge Joyal]

We had on Monday a representative from the College of Family Physicians of Canada, Dr. Francine Lemire. You might know her.

She answered very specific questions about the obligation of a doctor to provide for a referee when the doctor has a conscientious objection to providing the services, the right that we now have to satisfy according to the Supreme Court decision.

What is the position of the college in relation to that? Do you share the views of Dr. Lemire that a doctor cannot abandon his or her patient and say to look in the Yellow Pages or search online on their computer to find a doctor? What would be the position of a physician, according to you, who will want to exercise his or her right of conscientious objection in relation to informing the patient where to find that service?

[Dr. Douglas Grant]

I would first say that there's absolute unanimity across the country that physicians cannot abandon their patient. The conscientious-objecting physician cannot simply abandon the patient. They must continue to provide care to that patient. All colleges agree with that.

The difference amongst the colleges is on whether there exists a positive obligation to make an effective referral or whether they contemplate indirect referrals through another agency, whether it be the physician making the indirect referral or providing information to the patient and ensuring that the patient has the necessary knowledge. That's the range of options.

I think we can learn from the Benelux countries' experience that over time, as a network of willing physicians becomes known, the issue of access goes down. Our college's view—this dovetails with the question from honourable member Cooper—is that we saw it in our standard simply to operationalize what we thought Carter was saying. We weren't trying to make new law or expand on it. We just wanted to operate.

Carter doesn't give us clear direction there. I think this is essentially a medical thing, and I think the colleges need to get a harmonized approach to it. Our approach in Nova Scotia, as we were essentially treading water after Carter, was that we recommended an effective referral, but we mandated, for the physician who could not see his or her way clear to making an effective referral, that an indirect referral be achieved by providing the patient information.

There's some variety across the country amongst the colleges.

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

Thank you, Dr. Grant and Senator.

Because I'm feeling generous and it's Groundhog Day, I'm going to allow Mr. Albrecht a couple of minutes for a short question.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

I hope I'm not being equated with Groundhog Day, Mr. Chair.

[Voices]

Oh, oh!

[The Joint Chair (Mr. Robert Oliphant), Liberal, Rob Oliphant]

It's just a national fete.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you.

I'll try to be brief and be respectful of your time.

There's just a little confusion on the issue of conscience protection. You did reference Carter. It's quite clear in paragraph 132, “In our view, nothing in the declaration of invalidity which we propose to issue would compel physicians to provide assistance in dying.” I think there would be disagreement among professionals, legal and otherwise, as to what that actually means. Does it include active referral? Does it even include passive referral? I don't want to get into that argument right now, but I think there is room for debate around the definition.

One of my concerns is that as we approach the issues of conscience, it's paramount and I think this committee is charged with the very simple obligation to ensure that physicians have conscience protection, including, I would go so far as to say, not to refer. No other jurisdiction that has legalized physician-assisted suicide or euthanasia imposes any compelling of medical doctors to refer.

I want to ensure that our world view, as doctors or whatever other practice we're in, is not compromised by a set of external forces that forces us to go against our conscience. In fact, I would be concerned that in the issue and the situation with medical doctors who are compelled to go against their conscience, could there not be a serious implication of possible post-traumatic stress syndrome or other psychiatric issues with which those physicians might have to deal?

That's a very existential question. A more practical one is that if the regulations are allowed to be developed on a province-by-province case, is it not possible that a physician practising in Nova Scotia, where the regime is more mandatory, could move to New Brunswick, for example, or some other province where there's a more lenient and what I would call a more “open” regime in terms of allowing physicians to actually practise according to their conscience in all spheres of medicine?