Physician-Assisted Dying Committee on Jan. 18th, 2016

[Joanne Klineberg]

I don't think so, other than to say that, as I mentioned in my opening remarks, the criminal jurisdiction is exclusively federal. As my colleague mentioned, there is litigation that's currently suspended in relation to Quebec's law. That's still ongoing. It will be revived either at the time of the expiry of the Supreme Court suspension, which was just extended for four months, as this committee may know, or upon the coming into force of new federal legislation.

That litigation raises the question about whether certain parts of Quebec's law conflict with federal criminal law. Of course, we can understand why the litigation is delayed, because at present that federal criminal law is not there. But if the federal Parliament were to amend the Criminal Code in order to do something narrower, for instance, than what is available under Quebec's legislation, then that could give rise to these constitutional questions. We will really only know the answers to those questions once Parliament has completed its job, and, if there is subsequent litigation, once that litigation has been completed.

In terms of there being jurisdictional difficulties, I'm not certain that's a helpful way for you to proceed. It may be more helpful for the committee really to stay focused on what it thinks the right solutions are for Canada through the lens of the criminal law. Any inconsistencies will have to be dealt with at that time.

I'm afraid that's the best way I can answer that question.

[Judith G. Seidman]

In your best expert opinion, there aren't particular aspects of assisted dying that Parliament itself, at a federal level, should address in legislation and those that must be left to the provinces.

[Joanne Klineberg]

Surely, any amendment to the Criminal Code that says these are the conditions under which conduct that otherwise meets the definition of a crime shall be free from criminal liability is exclusively the responsibility of Parliament.

There is a variety of ways that Parliament can go about that. It can put very little in such an exemption. It could say, for instance, that so long as the conduct is in accordance with a very detailed provincial law, then that will result in an exemption for criminal purposes for the same conduct; or Parliament could say that for the criminal exemption to apply, it is going to determine to which offences it applies and it is going to determine under what circumstances it applies. With respect to the fundamental circumstances in which physician-assisted dying would be available, there's a very strong claim that it is Parliament's jurisdiction as a matter of criminal law.

The other aspects of Quebec's legislation are really the protective, safeguarding measures. There are things like the steps that the physicians must take in working with a patient who's made a request or the documents that have to be filled out. Once they have been completed, the documents are sent to the commission for the purposes of a compliance review, data collection, and monitoring so that the public can have confidence that physician-assisted dying is being administered in a safe way and is being administered in accordance with the objectives of the legislation. Those are the kinds of elements where it's more challenging to determine which level of government is the best place to do them. Maybe some of those protective features could be done by both levels of government, at which point you want to balance duplication of effort with ensuring that whatever Parliament thinks is necessary from a federal perspective is present.

In that regard, one of the things that I would bring to your attention is in relation to the compliance assessment function, which most physician-assisted dying statutes have. The body that would be referred a case, when non-compliance has been found, could be either the medical colleges responsible for governing the behaviour of physicians or it could be the police or the prosecution service. You will see in a variety of statutes that sometimes they say exactly who the reference should be made to when non-compliance has been found.

In terms of Canadian jurisdiction, the regulation of physicians is a provincial and territorial responsibility. Policing and prosecutions are also primarily a provincial responsibility, though in the territories they are more of a federal responsibility. There's an added complication there. That's something you might want to keep in mind when the committee is considering which level of government is best placed to do certain functions.

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

Thank you. That's our time.

Thank you, Senator Seidman.

Senator Cowan.

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

Thank you. I'm just following up on my colleague's comments about jurisdiction.

It seems to me that it's inevitable that the federal Parliament will legislate in its wisdom and that provincial legislatures may or may not legislate in areas that they think appropriate. There will be some inconsistencies and some gaps, and then there will be a second round where people will get together to try to reconcile those differences.

Is that the way you would see the legislative and regulatory framework evolving over a period of time? It's unlikely, is it not, that it would all come together exactly the way the puzzle should?

[Joanne Klineberg]

I know that this committee will be hearing from our colleagues at Health Canada in the coming days. Many of these questions might be better put to them, because through their federal, provincial, and territorial contacts, they will be most closely working with the provincial and territorial health ministries. But I can tell you that the provinces and territories are working diligently on this issue. They are all seized of the issue. The overwhelming majority of them worked together to appoint a panel of independent advisers to make recommendations to them, so they are in discussions with each other. Internally, they are all following up as diligently as they can and I think there will be a real concerted effort to have everything in place in the appropriate time frames.

[James S. Cowan]

Do you see a particular area in which we should be particularly conscious of the federal and provincial jurisdictions rubbing together? Some are clearly provincial. Some are clearly federal. Some are within the purview of the regulatory authorities of the professions, but there are some areas where things are not so clear. Can you point us in those directions?

[Joanne Klineberg]

I think the areas in which there is the most scope for overlap relate to the procedural safeguards, things like the physician needing to assess the patient's mental competency, the physician needing to have discussions with the patient on several occasions, the patient needing to fill in a form that is signed and dated and witnessed by at least three independent witnesses. I think these are measures that Parliament could consider as part of a regulatory regime from a criminal perspective if it felt that those sorts of details were necessary to protect vulnerable individuals, but that said, those are the sorts of medical practices that are not terribly dissimilar from what physicians already do under applicable provincial regulations, laws, and medical policies. The provinces and territories may well also feel that those are matters they are quite comfortable dealing with.

The issue of compliance review is one that I've already talked about. Bodies to which a referral would be made if a case of non-compliance were found would largely be provincial.

When you get to the question of data collection and monitoring and oversight for public accountability and public confidence, representations have been made to the various advisory bodies, which have been consulting over the last few months, suggesting that the monitoring at a national level would be especially important, because otherwise you could have 13 different bodies monitoring and that situation might become especially cumbersome.

I know there are concerns about differences and concerns that Canadians might find one regime more friendly to them than another. On the other hand, there are existing mechanisms already in place provincially to deal with discipline of physicians, policing and law enforcement and that sort of thing. With regard to the safety features, there are some complications, but perhaps monitoring stands out the most as the one that would benefit from a national review.

On questions of medical eligibility, from a purely criminal law perspective, when we would create a defence or an exemption to a crime, Parliament would normally say it would be a defence under certain circumstances. From a purely criminal perspective, that would be part of criminal law, but there would be scope if the committee wanted to allow provinces and territories to make those decisions to proceed that way as well.

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

Thank you.

Mr. Arseneault.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Ms. Klineberg, I looked at approximately 20 definitions of the word “euthanasia”, in both French and English dictionaries. Earlier, you said that several terms could be used, but that the strict definition of the word “euthanasia” does not necessarily imply that someone is asking for help in dying. I wanted to specify that for the record.

However, medical aid in dying, contrary to euthanasia, always means that a person wants assistance in dying and says so; and that has to be an informed request.

Which brings me around to the question I was asking you. In everything you have read about what is done in other jurisdictions, in what context can we say that a person has, in a free, informed and lucid way, in possession of all the facts, really asked for assistance in dying?

[Joanne Klineberg]

Please forgive me, I understood everything you said, except for the question you asked at the end of your comment.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Based on everything you read regarding other jurisdictions and other countries, what is the definition of what constitutes informed, free, lucid consent to assisted dying?

[Joanne Klineberg]

With your permission, I am going to reply in English.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

Yes, of course.

[Joanne Klineberg]

Because the answer is very technical.

You are very correct. I may have misspoken. I generalized slightly when I indicated that euthanasia was a term that's well defined. It is well defined, but there are subcategories of euthanasia.

In the context of the Carter case, the court was only ever speaking of what could be called “voluntary euthanasia”, which involves the person who asks being competent to make the decision. They are aware of their circumstances; they have received the necessary medical information; and they are capable of understanding the consequences of the different decisions that they might make. In such a case, where a person requested assistance to die and they received that assistance from a physician, that would be called voluntary euthanasia.

It could be involuntary if, for instance, a physician terminated the life of a patient contrary to their wishes. That could be called “involuntary euthanasia”.

There is another subcategory that could be called “non-voluntary euthanasia”, which would happen when the wishes of the patient were unknown.

I thought it might be best to try to avoid some of these complications, but it turns out that it's impossible.

In the Benelux countries, they define euthanasia just as the voluntary termination of human life. In the European countries, where you see the term euthanasia used in some of the legislation, it means voluntary euthanasia. In pretty much all of the jurisdictions, physician-assisted dying is really limited to patients who have requested the assistance, who are mentally competent to make that decision, and who have been fully informed regarding their medical situation and the options available to them.

In the Benelux countries, it is possible for an advance directive for assistance in dying to be made, such that the assistance would be provided when the person was unconscious. However, the request would have been made when they were mentally competent and conscious.

The Supreme Court didn't deal with those sorts of circumstances. They really limited themselves to the situation where the person is competent when they make the request, and competent when the assistance would be provided. There are a few notable exceptions in the European countries, where physician-assisted dying can be provided under a slightly broader set of circumstances, but always with the request having been made by a mentally competent person.

[René Arseneault, Liberal, Madawaska—Restigouche, NB]

This leads me to a sub-question. Perhaps you found an answer to it when you were elsewhere, like Benelux.

Do you think that an individual, even when he or she is in the best of health, before becoming ill, could make a request which could then be considered an informed request, stating that he would like assistance in dying when the time comes? Did you see anything like that in other countries?

I have not expressed that well, but I will give you an example: people consent to donating their organs on their driver's licence. People do that when they are young and in good health.

Does something like that exist?

[Joanne Klineberg]

No, I think that in the Benelux countries—if I were permitted the time, I could look it up, since I have it with me—there must be a fairly close temporal connection between the advance directive and the wishes being carried out. It may be up to five years. I would have to confirm that for you.

No, I do not recall seeing any situation in which it could be made 20 years in advance and be carried out.

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

Mr. Warawa.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

Thank you, Chair.

Thank you to the witnesses from the Department of Justice.

I'm sure that almost all of us around this table have been discussing this in a number of different formats, including meetings with constituents, and have heard diverse opinions on this issue.

I wanted to confirm with you, because I believe I heard you say that under the Carter decision, you do not have to be terminally ill to qualify. There could be emotional, irremediable, grievous suffering. It does not have to be a terminal illness. Is that correct?

[Joanne Klineberg]

That is what is not entirely clear. Certainly many commentators have said there's nothing in the Supreme Court's decision that says this is limited to people who are terminally ill. On the other hand, there's nothing in the Supreme Court decision that clearly says this is not limited to people who are terminally ill. Both of those expressions would have taken a very small number of words. Neither one of those statements is there, so we cannot say with certainty what the court had in mind.

[Mark Warawa, Conservative, Langley—Aldergrove, BC]

The mandate of this special committee is to prepare a report to the government and make recommendations of what should be included in legislation.

The government introduces legislation. If they get this at the end of February, they have about three months to introduce it, get the bill through all levels of the House, committee, the Senate, and then royal assent. They have about three months to meet that deadline.

No matter what is introduced in the form of legislation, it likely will be challenged. What I think I'm hearing you say is that because of its not being clear, this committee could recommend that we require it to be a terminal illness, and then it might meet the Carter decision. Is that what you're saying?

[Jeanette Ettel]

There are maybe three things to keep in mind.

The first is, as my colleague pointed out, the indeterminacy within the judgment itself. It's subject to competing interpretations, including the statement where they say this is about the facts of this case. It's hard to know exactly what the court had in mind.

There are two other things that I think are relevant in answering your question.

The first is that you have to have regard for the type of evidence that was before the court in Carter in relation to the type of question the court was being asked, which was whether you can have a blanket prohibition. That was round one.

Round two, as I think you rightly predict, will be a different question. That's going to be the question based on not having a blanket prohibition anymore. What we have is Parliament's best efforts, based on its objectives and the evidence before it, to strike a reasonable balance between the life, liberty, and security-of-the-person rights of people seeking assistance in dying against the objectives in relation to the protection of the vulnerable. The kind of evidence that will be before Parliament and before the court in an eventual challenge will be different, because it will be evidence comparing the relative merits and risks of the different regimes, which really wasn't what the court was looking at in Carter. We can't know now how the court will respond to that particular question.

The last piece that is also important to bear in mind is the notion of the constitutional dialogue between the courts and the legislative branch, which has been recognized by the Supreme Court of Canada in a number of cases. The best example, if you're interested in some light reading, is what transpired between the Supreme Court decisions in O'Connor and Mills. Basically what happened there was that the court articulated a very specific regime as its way of balancing the competing rights that were at issue in that case. It was in a sexual assault context. It had to do with the rules around the production of third-party therapeutic records that complainants in sexual assault cases might have.

The court created a regime, as a matter of common law, that was designed to address the constitutional issues that had been raised in that case. Not long after that decision, Parliament came back with a legislative scheme that differed in some significant respects from what the court had come up with. What the court said was that it could not be presumed, just because Parliament's scheme looked different from what the court had envisaged, that it was unconstitutional, because there's this notion of a dialogue between the legislative branch and courts. Although courts are mandated to uphold the Constitution and although they provide the general parameters within which legislators must act, they don't necessarily have the last word on how you craft a regime that meets those constitutional parameters.

In Mills, the legislative regime was upheld. The bottom line there is that there is some scope within which to manoeuvre. Obviously the committee and Parliament will have to have regard to the principles and the broad parameters that the court articulated in Carter. At the end of the day, whatever regime Parliament comes up with is going to be assessed against the objective that Parliament was striving to achieve and how rational and proportionate Parliament's solution is as a means of achieving that objective.

That's as much of an answer as I think I can give. I hope that's helpful.

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

Thank you.

I will just mention to the committee members that I am being generous with the time, mainly because of the high quality of the answers we are getting. If we don't always get high-quality answers, I won't be quite so generous, but the answers are really helpful for our committee. For that reason, we've been going over the time limit because your answers are laying a very important foundation for our work. Thank you.

Are you okay to keep going? Do you need a break?

You're good. Okay.

Senator Nancy Ruth.

[Nancy Ruth, Senator, Ontario (Cluny), C]

Thanks for raising the issue of equitable and affordable access to justice.

Are there any real alternatives to relying on existing consent and capacity laws and processes, as recommended by the provincial-territorial expert advisory group on physician-assisted dying in recommendations 17, 20, and 24? If so, what are the alternatives and how would they work? Do you have any specific concerns about these consent and capacity laws and processes in the context of physician-assisted death?

[Joanne Klineberg]

I'm not able to share any concerns necessarily with the adequacy of those laws. All I can do for the benefit of this committee is to relay that the jurisdictions that have legalized physician-assisted dying have found that it was necessary to have fairly specific procedures tailored to this context in light of the seriousness of the decision being undertaken and in light of the fact that in all of those other jurisdictions it is conduct that would otherwise be criminal.

In some cases there are very specific measures. For instance, the requirement that there be a written request that is signed by the patient and witnessed by two or three independent witnesses could potentially serve as evidence that a physician complied with the law. It might be a more direct and concrete piece of documentary information that can give everyone greater confidence that the individual was acting in a voluntary way and was not being coerced by family members and that the time was taken by all the parties to treat this issue with the seriousness that it implicates, given the fact that when the procedure is provided, a physician is contributing to causing the death of a person.

Unfortunately, I wouldn't really feel comfortable commenting on the adequacy or inadequacy of existing provincial regulations. I would only bring to the committee's attention that it might want to consider whether more is needed in the circumstances of physician-assisted dying.