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

[Angus Gunn]

Thank you for the question.

The driver behind the submission presented today is the reality of the constitutional constraints in which this debate is happening. It's a premise of Professor Hogg's submission—and I have the utmost respect for Professor Hogg and his scholarship—that the federal Parliament could enact a comprehensive regulatory scheme through the exercise of its criminal law power. It is my submission that to do so would miscast the issue and would be vulnerable to constitutional challenge as an excess of the criminal law authority.

I think, architecturally, Professor Hogg's recommendation has an elegance to it, but I submit it is problematic, from a standpoint of constitutional competence, to commit to that framework. I, however, urged a framework that I say is more likely to withstand constitutional scrutiny and yet be workable. It may come at the cost of some unevenness; I think that has to be recognized. But whatever model is adopted does need to be capable of withstanding constitutional scrutiny.

[James S. Cowan]

I want to switch to the issue of advance directives. You're familiar with the recommendations that have been made by the provincial-territorial panel as to the various levels and different categories. Is it your view with respect to advance directives that there must be competence, not only for the initial request but at the time the request is carried out? Is that where you are on that issue?

[Angus Gunn]

I'll let Ms. Birrell supplement this answer, but I would say no. The example given was dementia. This is an example in which the patient would, presumably, at the end of life not have the decision-making capacity to provide informed consent. However, if an advance directive had been completed by that individual, which otherwise satisfied the criteria, it should be given effect.

[James S. Cowan]

You mean even if the patient had lost, as one would in that case, the capacity between the time of the original execution of the declaration and the time the assistance was administered. Is that correct?

[Angus Gunn]

That's correct.

[James S. Cowan]

Ms. Birrell, I thought you wanted to interject.

[Margaret Birrell]

No, I just wanted to support that.

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

Ms. Shanahan.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

This is also a question for Mr. Gunn.

Ms. Hutchison mentioned in her presentation that her group is advocating for the invocation of the notwithstanding clause. Do you have an opinion on that?

[Angus Gunn]

It would go beyond my brief as counsel for the alliance to go there. In my submission, the government has indicated its intention to respect the spirit and letter of Carter, so to the extent that the commitment has been made, it would seem to be incompatible to invoke the notwithstanding clause.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

Ms. Hutchison, can you tell us a little bit more about your thinking and your group's thinking with regard to what is behind this invocation?

[Carmela Hutchison]

The implication is that people have not fully considered the full implications. Despite all its “go gently into that good night” intent, if my last breath is the one after this, then whether you are applying a biological, mechanical, or chemical means to stop the one that happens after this one, euthanasia is still a form of violence. Violence is being applied, and we need to take a very sober look at that.

What is happening with Carter is not a floor, but a toboggan down an extremely icy, slippery slope. As Canadians we have to be cognizant of that. We are a country that does not have capital punishment, yet we are going to condemn to death people who are ill, who are sick, and who are debilitated in the absence of proper disability supports and resources—

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

May I interrupt you there to ask another question? Sorry, but I want to give you a chance to comment on this because we've heard testimony from other disability groups and witnesses who were disabled themselves and who expressed concern about patient autonomy. We're talking about how this is the individual's request and a constitutional right. The individual is asking for this.

How do you square that circle?

[Carmela Hutchison]

In terms of squaring that circle, we had to ask ourselves and our own organizations a lot of questions. Since Carter was a disabled woman, are we going against sister disabled women?

The reality is that the decisions they're making and the comments they're making are made because of internalized ableism. Ableism is almost like a form of racism against disability. They're looking at the situation through ableist eyes—I cannot bear to be incontinent; I cannot bear to be fat; I cannot bear to be dependent—when in reality we are all interdependent.

I would doubt very much that the people who were bringing forward litigation, the Carter case, would have changed their own oil, wired their own houses, or done their own plumbing. They had to depend on other people for certain tasks in life, as we all do.

Even to make this possible, I had to depend on technicians, on permission of the hospital, and on the head nurse to make the arrangements and the approvals that were necessary for me to speak to you today, and I had to depend on the nurses who had to help me with the bodily functions that were necessary to get me here.

Autonomy—

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

I thank you very much, Ms. Hutchison, but isn't that what we're talking about? Isn't it a choice that you are making? Would you deny that choice to others, that choice to avail yourself of what care you're going to have?

In fact, paragraph 127 of the decision—

[Carmela Hutchison]

But it's a process.

[Brenda Shanahan, Liberal, Châteauguay—Lacolle, QC]

—states about treatment that “it should be added, [it] does not require the patient to undertake treatments that are not acceptable to the individual”. Would you say that the individual has that choice?

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

A very quick answer, please.

[Carmela Hutchison]

I think they have not explored that choice from a realistic perspective. I think that sometimes if they've not been exposed, perhaps, to situations that once they've been in them.... On the first day that I needed physical assistance with certain things, I was very upset, but then once I adapted, adjusted, and had the support of disabled peers, I was able to do many other things.

I still do many, many things, even speaking to you and speaking to issues that affect millions of people, from a hospital bed. I think that perspective needs to be brought forward. I think we need to be able to encourage people and to encourage Canadians that lives matter, even when we're talking about dementia and dignity.

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

Thank you, Ms. Hutchison. We're a little over time now.

I need to go to Mr. Cooper.

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

Mr. Chair, I'll designate my time to Ms. Harder.

[Rachael Thomas, Conservative, Lethbridge, AB]

Thank you.

Carmela, I want to thank you for being so vulnerable with us today and for giving us your time. It certainly has been a pleasure to hear you. My question is for you, and I'm wondering if you can comment.

I know that most people who have a disability go through a time of deep grief and often deep depression, and during this time there can even be suicidal ideation. There is this time before adapting to their disability, of course, and then most of them actually go on to discover that there is an ability that comes with their so-called disability, an ability that they maybe didn't have before, and this actually brings about a new sense of life, dignity, respect, and worth, if you will.

In this context, Carmela, I'm wondering if you could explain to me what safeguards you feel are appropriate in order to ensure that we are not unnecessarily euthanizing these individuals going forward.

[Carmela Hutchison]

We do not have such safeguards. I tried to research any kinds of measures that might measure for vulnerability, or indices, or.... For 10 years, I worked as a nurse in mental health. How could we avoid having coercion? How could we ensure...?

I'm very concerned, especially with respect to young people, because even in my own process, I had a time when I was new in my disability. I crawled around on my soft underbelly for many years thinking that I just didn't want intervention. I once walked in and said that to my doctor. I've had the same doctor since 1989. I said to him, “I don't want anything.” He said to me, “Carmela, I'm not going to accept that. You're only 38.”

That was my first “helmet shake” that maybe my life was worth something. I kind of let that cogitate, and I went and made a personal directive. It was sort of like, well, God made the world in seven days, okay, so maybe I'll let people gather to say goodbye and then we'll pull the plug. I have that directive. I was in the process of revising it when, ironically, I got pneumonia, ended up in urgent care, and then ended up in ICU. That's this hospitalization right now. I've been here since December 11.

As that was happening, I was terrified. I was terrified to come to ICU because of Carter, but also, as I went along in my process, I started to become involved in the peer support movement. I became involved with other people with disabilities. I also have had many medical conditions, and people have said that because I have a head injury, I can't get brain injury rehab. I can't get occupational therapy.

[Rachael Thomas, Conservative, Lethbridge, AB]

Carmela, may I interrupt you for a moment?

[Carmela Hutchison]

Yes.