Physician-Assisted Dying Committee on Feb. 4th, 2016

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

You have four minutes left.

[Murray Rankin, NDP, Victoria, BC]

It is as follows:

That, in the opinion of the Committee, the government work with the provinces and territories on a flexible integrated model of palliative care by establishing the right to universal palliative care and implementing a Pan-Canadian Palliative and End-of-life Care Strategy that is tied to dedicated funding.

That, in the opinion of the Committee, the government re-establish a Secretariat on Palliative and End-of-Life Care with dedicated funding to: i. Coordinate with the Provinces, Territories and Federal health jurisdictions; ii. Set clear national standards; iii. Coordinate end of life Care research, gather consistent and ongoing data; iv. Set and monitor standards for the education of all health care providers; v. Create supports for patient and family caregivers; vi. Advise on national public education campaigns.

That, in the opinion of the Committee, the government implement a National Awareness Campaign on end of life care including palliative care with a focus on end of life assistance planning.

That, in the opinion of the Committee, the government improve end of life Care services within federal jurisdiction by establishing it as an essential service including culturally and spiritually appropriate palliative services for Canada’s First Nation, Inuit and Métis people.

And lastly:

That, in the opinion of the Committee, the government provide more supports for patient, family, and community caregivers including making the Compassionate Care benefits be made more flexible and available to all caregivers, not just those whose loved ones are about to die imminently.

That is the notice of motion that I'm putting on the table now, if I may.

I don't know whether I have any time left to ask a question.

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

You have.

I would just note that those are probably notices of several motions.

[Murray Rankin, NDP, Victoria, BC]

I have one motion with five parts, but I take your point. They are perhaps five motions.

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

Certainly.

The floor is yours for another two minutes and 10 seconds, so you can either invite the witnesses to comment on that notice of motion, which will be brought to the committee later for voting, or you can continue your questioning.

[Murray Rankin, NDP, Victoria, BC]

I think I'd rather do the latter, and thank you for that.

I'd like to ask Mr. Gunn and Ms. Birrell....

Thank you very much for your participation today. Building on something you said, Mr. Gunn, how minimalist a federal response can we afford to have in the absence of provincial laws?

I'm concerned about just how minimalist it could be. You're talking about a comprehensive response, I believe. I'm wondering whether you have given thought to just how far we could presumably go, under the criminal law power, to do what we are about to try to do.

[Angus Gunn]

Thank you for the question.

In my prepared remarks I suggested that the implementation of Carter itself—which is, as we've discussed, restricted to its own facts—could be done with a rather minimal amendment to sections 14 and 241(b) provisions that were impugned. In the event that access to physician-assisted death was provided in a province that had not yet adopted a comprehensive scheme, and we had that minimalist of federal response, how would that void be filled?

In my prepared remarks I offered the proposal that it may be that existing guidelines and standards within the medical profession for dealing with existing end-of-life decision-making could fill the void in the absence of a provincial response. Obviously, the preferred response would be a robust provincial answer, but in its absence I say that fallback may be preferable to a rushed federal response implemented through the federal criminal law power.

I'll ask Ms. Birrell if she wishes to augment that.

[Margaret Birrell]

No, I'm fine.

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

You have 10 seconds.

[Murray Rankin, NDP, Victoria, BC]

All right, then I'll pass. Thank you.

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

I've been a little generous with other members. If you want to go, you can.

[Murray Rankin, NDP, Victoria, BC]

I have one more, if I may, then.

Mr. Gunn, if we adopt an incremental approach, as you've advocated, what do you think we should put off for later? You talked about mature minors. What other topics were you thinking should be on the later list?

[Angus Gunn]

Let me reverse that. I think what should be on the “now” list is that which is subject to the short fuse, and that's Carter, so adult patients with all the conditions identified in Carter. I say that is what is driving this timeline. I think everyone can agree that these are issues that deserve a full process, and for no fault of anyone it's not possible to deal with that within the constraints that we're working with. The committee could serve it by implementing that which needs implementing now and deal with everything in due course.

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

Thank you, Mr. Gunn.

Senator Seidman.

[Judith G. Seidman, Senator, Quebec (De la Durantaye), C]

Thank you, Chair, and thank you very much, everyone, for being here today.

Mr. Gunn, I would like to continue with the minimalist interpretation that you have presented to us along member Rankin's line of questioning.

The Supreme Court didn't define the terms “grievous” and “irremediable” illness. We have heard from some that rigid definitions might have unintended consequences. What would be your advice on defining “grievous” and “irremediable”?

[Angus Gunn]

Thank you for the question.

I share the concern that attempting to codify a definition of either term will end up resulting in harm. There is no question that, with the advances of medical science, which conditions are grievous and which ones are irremediable will change over time. If an attempt were made to codify those definitions statutorily, over time they would become both over- and under-inclusive of the population that should be provided access to the principle in Carter.

My submission is that they should be left where they currently reside, which is in the discretion of the treating medical physicians under the applicable college guidelines.

[Judith G. Seidman]

Okay, thank you.

In the same mode of questioning, I'd like to ask you about the definition of “adult”. We've all talked about uniform access across the country, and we've heard from some that it's important to recommend a clear definition of the age requirement in order to ensure uniform and coherent enforcement and access across the country. How would you respond to defining “adult”?

[Margaret Birrell]

I think it's very important that the same criteria for accessing assisted death should be the same criteria if you have a competent underage person. Those standards should be the same. I don't think you can draw a line on age, or say this is it and that's not it. It has to be that the person requesting the right to die goes through the same procedure as an adult and the same criteria to see if they are in fact competent, knowledgeable about the options that they have, and are not persuaded by someone else. Those would be the safeguards, and those are the same safeguards you would have for an adult.

[Judith G. Seidman]

Even if that results in different interpretations across the country, you would not have trouble with that.

I mean, you did present to us that you would like a minimalist approach, with the provinces' ability to develop their own legislation as long as it was equal to the federal legislation. However, this might potentially result in very different accessibility across the country.

[Margaret Birrell]

I agree with you. That's why I think Mr. Gunn said that we need to get the floor in now. We need to be able to speak to that, and then start to work on the other issues that are coming from the whole issue of assisted dying.

I think we cannot delay, but we also can't rush with a shopping list unless we have the floor and the definitions and the safeguards.

[Judith G. Seidman]

Thank you very much.

Do I have a few more minutes?

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

You have 20 seconds.

[Judith G. Seidman]

Thank you very much. I think I'll end my questions there.

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

Senator Cowan.

[James S. Cowan, Senator, Nova Scotia, Lib.]

Thank you.

Thank you to the witnesses for being here. It is very helpful.

I want to pursue with Mr. Gunn the same points that Senator Seidman and Mr. Rankin were talking about, and that is the difference between your approach, a minimalist federal framework supported by what you described as a comprehensive and uniform provincial scheme, with the opinion we received from Professor Hogg that the better way to go would be to establish a robust federal scheme and leave it to the provinces to meet it. If they were able to come up with equivalent regimes at a provincial level, then the federal authority could say that it is equivalent and the provincial regulations and regimes would apply in that province.

It was his view that this is the only way in which you can ensure pan-Canadian eligibility, equality of access, and equivalent safeguards across the country. He explained that we should not assume that all provinces will step up with legislative responses to Carter, or that those legislative responses will be as you describe, comprehensive and uniform.

Why do you take a different approach than Professor Hogg, and why would your approach better meet those three roles of ensuring eligibility, quality of access, and equality or equivalency of safeguards across the country, from coast to coast to coast?