Honourable senators and members of Parliament, thank you for the opportunity to appear before you this afternoon.
With me is Margaret Birrell, who is president of the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society. My name is Angus Gunn, and I have served, since 2011, as litigation counsel for the alliance. I have been asked to provide the prepared remarks this afternoon, and Ms. Birrell will be pleased to respond to any questions the committee may have.
The members of the alliance that I represent are leading advocates for disability rights in Canada and elsewhere. The alliance sought and obtained intervener status at all three levels of court in the Carter litigation to advocate for the right that was ultimately recognized in the Supreme Court of Canada. The alliance wishes to address five themes in its prepared remarks today, and we will be providing a written copy of these remarks to the committee clerks in due course.
The first theme is on the question of the committee mandate. The alliance urges that, in recommending a framework for a federal response on physician-assisted dying, primacy be given to the values of patient autonomy and dignity that Carter described as underlying the section 7 charter rights to liberty and security of the person.
The alliance also urges a commitment to co-operative federalism, in which the federal, provincial, and territorial governments deploy both legislative and non-legislative measures in the pursuit of a patient-centric, and to the extent possible, uniform Canadian response to Carter.
The alliance considers that these aims are best pursued by implementing physician-assisted death in Canada in stages. Carter has frequently been described to your committee as a floor and not a ceiling. As a practical matter, the declaration in Carter will come into force on June 6 of this year. The floor must be implemented by that date, and legislation is needed within weeks.
The alliance urges that whatever needs to be done to implement Carter be done, and that a robust longer-term commitment be made to determine where the ceiling lies—an even more complex debate that carries no judicial deadline and deserves fuller consideration over time through a proper white paper process.
The second theme is that of divided jurisdiction. Within a coordinated response to Carter, the alliance considers the ideal structure to be a minimalist federal legislative scheme paired with uniform and comprehensive provincial and territorial regimes. Under this model, Criminal Code amendments should be limited to providing that an act of physician-assisted dying that would otherwise meet the definition of a crime shall be free from criminal liability, so long as it accords with the law of the province or territory where the act occurred. The alliance favours that model because of the unsuitability of dealing with these matters through the criminal law power, whether through the Criminal Code itself or in a stand-alone statute that relies on the federal criminal law power.
Carter expressly conceptualizes the right to physician-assisted death as an aspect of patient autonomy in decisions concerning medical care. Both palliative care and physician-assisted dying should be treated as part of best practice end-of-life medical care. They are therefore matters whose pith and substance favour the provincial and territorial legislatures' taking the lead.
The alliance recognizes the challenges in realizing this ideal, and shares the concern that a patchwork quilt of regimes across the country could result. These concerns, however, do not overcome the constitutional constraints within which we are operating.
A comprehensive scheme created under the federal criminal law power would inappropriately treat what is fundamentally a health care matter as a criminal law matter and would be vulnerable, we submit, to constitutional challenge.
If no statute applies in the province or territory where the act occurred, then the void does need to be filled, but a comprehensive federal regime might not be the only option. It may be that existing standards and guidelines within the medical profession for dealing with other end-of-life decision-making provide the necessary guidance. Most colleges have either promulgated such guidelines or are in the process of doing so. Alternatively, regulations under the Criminal Code could perhaps designate a provincial or territorial scheme that would apply in the absence of one in the province or territory where the act occurred.
Whether the comprehensive regime is implemented federally or provincially, the alliance favours reliance on secondary legislation for much of the detail, so that the regime can evolve dynamically and not be codified by statute.
The remaining three topics deal with questions of eligibility and process, and they apply regardless of the level at which the comprehensive regime is implemented.
The third theme is no advance panels. A central thrust of Carter was the relationship between dignity and autonomy on the one hand, and timely access to physician-assisted death on the other. Adopting an advance panel procedure for accessing physician-assisted death would create barriers and burdens, and it would erode or even extinguish the very rights recognized in Carter. To go still further and require a court order would wrongly judicialize what Carter viewed as an intensely private decision within the patient-physician relationship.
These risks are crystalized in, for example, the practice advisory issued by the Ontario Superior Court of Justice six days ago. Among other things, it requires that both the federal and provincial attorneys general be notified of an application for exemption from the Carter decision, and it also contemplates notice being given to family members.
Would all of those actors have standing to oppose the request? If so, why? Extensive affidavit evidence is required not only from the applicant and his or her attending physician but also from a consulting psychiatrist and the proposed physician who would assist death, if that person is not the attending physician.
How many weeks would this application take to be heard? How long would the court reserve judgment? Could the court's order be further appealed? Who would pay for these psychiatrists and lawyers? These hurdles are onerous, inappropriate, and antithetical to Carter. The law should not force those whose only wish is to escape grievous and irremediable suffering to spend what they hope will be their final days embroiled in litigation.
The fourth theme is that advance directives should be honoured. Carter accepted that the impugned Criminal Code provisions robbed individuals of their section 7 rights, in part by forcing them to choose between premature death or suffering until death by natural causes.
The alliance considers it essential in implementing the Carter floor to honour advance directives if the spectre of premature death is to be avoided. Advance requests for assisted death should be valid when made by a patient who, at the time of the request, was competent and had a diagnosis for a condition that was or could become grievous and irremediable, including dementia.
Fifth and final is conscientious objection. Carter recognized that nothing in its declaration would compel physicians to provide assistance in dying. The alliance submits that a comprehensive scheme should enable doctors to opt out, but only in a manner that imposes no burden on patient care and ensures continuity of care.
The protection of a physician's right to conscientious objection must not impair the ability of a patient eligible for physician-assisted death to access it. Conversely where a physician's conscience favours the provision of physician-assisted death, no health care institution should be able to impede that physician's ability to provide that form of health care within or outside the institution.
Thank you again for the opportunity to provide these prepared remarks and to participate in the important work of this committee.