Thank you, honourable senators and members of Parliament.
Twenty-one years ago, in 1995, I was before a similar Senate committee on the same issue. It is a pleasure to be back with you again to talk about this important issue. I was counsel at trial and at appeal and in the Supreme Court in the Carter case, and I've spoken on this subject in Canada at our universities and Canadian bar associations.
I will go right to my most important point, Mr. Chair, and that is that if you carefully implement the exact words of Carter, you will not likely go wrong. I believe that Chief Justice Heather Smith did this, and the court's list of requirements that were published today means that my most important recommendation is there should be no assisted death unless a judge has confirmed that all the requirements of Carter have been met.
In my presentation I will go into the reason I strongly recommend judicial review in advance. I recommend that for all provinces, including Quebec. That would not be inconsistent with the Quebec legislation. With the Quebec legislation, you would have to comply with both the federal and the Quebec legislation.
I will address each of the questions that this committee sent us.
First, on age, I agree with the previous presenter that the age of 18 is the appropriate limit on access to assistance in suicide. The decision of the Supreme Court of Canada in A.C. v. Manitoba in 2009 requires Parliament to act in the best interests of children and to create a presumption that children are not competent to make life-and-death decisions, and that means anyone under the age of 18.
Second, on the question of capacity, the capacity limitations identified in Carter v. Canada are critical to protect the vulnerable. No one suffering from a mental disability that impacts capacity should have access to suicide assistance. The decision of the Supreme Court in Eve reaffirms and reinforces that principle. It prohibits consent to death on behalf of a person who is incompetent to give consent. This includes the immature, the mentally disabled, and those who have lost the ability to make competent decisions for any reason. This also means there could be no advance directives on the subject of physician-assisted suicide without conflicting with the decision of the Supreme Court of Canada in Eve.
Third, going on to conditions, all the conditions expressly identified in Carter v. Canada must be reiterated in the legislation adopted by Canada. The failure to include conditions will create unnecessary risk of abuse and will create an impression that government supports suicide. This is not a message that should be given at this time, particularly in Alberta, where the suicide rate in some first nation communities is 100 times the national average.
The fourth question was on vulnerable Canadians. The Supreme Court of Canada, in Carter, carefully balanced the right to life of those in unremitting pain with the right to life of the vulnerable who need protection from abuse under the Criminal Code. The court observed that the models in other jurisdictions were not impressive and that Canada must and could do better. The right to life in section 7 of the charter requires Parliament to take into account both perspectives on life. This issue is addressed by the European Court of Human Rights in the case of Haas v. Switzerland from 2011. In that case, the European Court of Human Rights recognized the dual responsibility of Parliament or of government, and that is you must both protect life as well as allowing individuals to make choices at the end of life.
Going on to the mechanics of the request, the legislation from Parliament should prohibit a physician or any person from raising the subject of suicide with an individual. The individual must raise the question before the subject may be addressed by a physician. There are numerous stories, and I won't take your time this evening to go through them, of psychological stress and abuse caused by government or medical staff raising the idea of suicide with the ill or the elderly. This abuse must be prohibited and prevented. Until the idea of suicide is voluntarily addressed first by the patient, the medical team must be restricted to offering only palliative care.
There is another reason to require that the individual raise the issue. We in Alberta know the unfortunate history of sterilization from 1929 to 1972, when health care providers used their power to abuse their patients and sterilize almost 5,000 patients against their will. Those patients were regularly noted on their chart as having consented to the process. This supports the idea of having judicial review, but it also supports the idea that hospital administrators wanting to save money or physicians wanting to raise the subject with their patients will be prevented from doing so.
Even the Canadian hero Nellie McClung got caught up in the evils of eugenics from 1929 on. In “Sterilizing the 'Feeble-minded': Eugenics in Alberta”, Grekul, Krahn, and Odynak highlight and give us a sobering reminder that all progress is not necessarily desirable. Sometimes progress takes us down a road we would not take if we knew what was at the end. Once a request is made, then all of the health status requirements of Carter v. Canada must be met and respected by the attending physician.
With regard to oversight and the question of judicial oversight, after consent has been validated, the physician should have a duty to apply to a judge for approval of death before death occurs. The physician should be required to seek the opinion of a second physician, and both should be required to swear affidavits that they are satisfied that the conditions of the law have been met. The physician should be required to serve copies of the application and affidavits upon the next of kin.
This is the minimum required when an application is made under provincial adult guardianship and trusteeship legislation in Alberta and in other jurisdictions in Canada. Surely death is more significant and more permanent than decisions regarding finances and housing. If the loss of financial control requires judicial oversight, surely loss of life deserves no less.
Courts are experienced in making decisions regarding these questions, based upon the evidence of physicians. The issue of religious objection to blood transfusions is just one area where the courts have been called upon to make such life-and-death decisions. The courts have been able to make those decisions on an emergency basis with a minimum of risk to the individual and a minimum of delay. Making these decisions is today a regular occurrence across Canada, and the initiative of Chief Justice Smith of the Ontario Superior Court today is further evidence that the courts are prepared and able to handle this responsibility.
Some have advocated leaving the entire responsibility to the physician and excluding judicial oversight. The Supreme Court of Canada has already addressed this issue and determined that there is no right to have life-and-death decisions made in secret.
In Cuthbertson v. Rasouli, a 2013 decision of the Supreme Court of Canada, the Supreme Court of Canada reviewed and affirmed the judicial oversight provided under the Ontario Health Care Consent Act. Under that act, physicians must be involved, but they should not be the ultimate arbiters of life and death. Independent judicial review prior to death is best. It will avoid much suffering and prevent the expenditure of significant funds on lawyers and court costs. Estates should go to children and beneficiaries, not to lawyers fighting over whether a physician has properly secured and documented consent.
With regard to privacy considerations, courts and physicians have effectively preserved the privacy of individuals over the last few decades when issues of life and death have come before the courts. The legislation enacted by Parliament should maintain that standard of medical ethics. All applications to a court for judicial oversight should be restricted to the parties named and served under the legislation.
Next, who should do what? The physician should be given the responsibility to manage the process; however, the legislation must recognize the roles of others and authorize their participation. Health care facility owners, administrators, and employees must all be given immunity once a court order is issued. Carter v. Canada only addressed the issue of physicians. If you restrict your law to physicians, you will leave 99% of the health care providers in this country at risk.