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

[Nancy Ruth]

Okay. I'm going to move now to the issue of who's going to follow up on this.

I know some groups in Canada are very keen to set up special panels or a panel of one that will deal with whether this should be justified and allowed, so my question is this. What legal processes do we currently have in place to monitor physician-assisted death cases without adding new entities, as compared to the review committee and other new processes recommended by the provincial-territorial panel? For example, we have medical examiners and we have coroners in every province, and I note your comment about having a federal monitoring agency. I throw that into the mix.

Do we have enough with the coroner system?

[Joanne Klineberg]

That is yet another very good question. Unfortunately, I'm not very familiar with provincial and territorial legislation on coroners.

It is my understanding that unnatural deaths are brought to the attention of coroners, and then an investigation is undertaken. In terms of whether that process alone would be sufficient to determine whether physician-assisted dying had been provided in a manner that gave Canadians confidence that the person was mentally competent and had been informed of all health care options and was not under coercion or duress, I'm not in a position to say, unfortunately.

It is a very good question, though.

[Nancy Ruth]

I have one last question and it's a charter question.

I spoke with a well-known constitutional lawyer who often appears before the Supreme Court and who mentally has issues. She said to me, “How dare you design a law that would exclude us who have mental illness? If you do so, I'm in court.” What's your response to that?

[Jeanette Ettel]

I think the response really falls along the lines of what I've said already. As I think one of the members has already noted, it would not be unreasonable to conclude that whatever Parliament comes up with will be subject to challenge, whether for being too broad or too narrow, and that there will be inevitably an exercise of line-drawing that has to take place. That will be on grounds of age and on grounds of what kinds of illnesses, whether mental or physical, get you in the door.

What I can tell you is that I'm not in a position to tell you what would be the outcome of that litigation right now, because it would depend entirely on that equilibrium between the objective and the evidence before Parliament in establishing that this was a reasonable way to strike a balance. Absolutely, drawing the line to exclude types of illnesses could be challenged on section 15, equality grounds. Similarly, it could be challenged on the same basis whereby the court found the prohibition violated the charter under section 7. But what the court would conclude would really depend on what would be in the record to show why the line was drawn in that way.

[Nancy Ruth]

If my job is to represent—

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

I think we have to move on.

Did you have one comment you needed to make?

[Joanne Klineberg]

I only wanted to add, if it's at all helpful to the committee, that in the Benelux laws, which have the broader scope of eligibility for individuals who are chronically but not terminally ill, there is not one of them that distinguishes between mental illness and other types of illnesses. There's no existing law out there that would allow physician-assisted dying for chronic conditions that are not life-threatening, but would exclude individuals with mental illness. It's always an individual assessment of the person's mental competence.

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

Thank you.

Senator Cowan.

[James S. Cowan]

Thank you, Chair.

To go back to the point I was pursuing earlier about the patchwork of legislation and regulation, our objective obviously would be to design a system that would be equally applicable and available to all Canadians wherever they live. Access to that, to any system, is difficult in a country as diverse as Canada, with its large urban centres and small rural populations. If you add to that the federal-provincial and perhaps even professional regulatory players in this thing, do you see a legitimate concern there that whatever we decide as the Parliament of Canada will afford unequal access and therefore unequal availability across the country?

Is there anything we can do to minimize that, other than to continue to talk to provincial counterparts, territorial counterparts, and the regulatory agencies? Is that the answer?

[Joanne Klineberg]

Yes, I think that is the answer.

It's very much going to be in the details of what are the kinds of communities where only certain types of medical professionals are available. I've been told that there are some communities in the north where no physicians are available. There are video links for people to be seen by physicians. In fact, they may only have access to nurse practitioners. The committee won't really be able to proceed without getting that kind of detailed information.

Again, the concern will be to not be placing barriers in the way of individuals having access unless there's a very good reason for that. I think the dialogue and hearing from provincial and territorial governments—and likely also our colleagues from Health Canada—will be able to give you more detailed information on these sorts of issues.

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

Thank you.

Mr. Aldag.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

This is my first committee, so I'm not entirely sure what to expect for a flow of information, but we've just been handed what looks like a very thorough report. Does this come from your department? Where is this coming from?

[Joanne Klineberg]

What you have before you now is the report of the federal external panel that was created by the last government, by the ministers of justice and health, to consult with Canadians, experts, and stakeholders. Originally they were tasked with providing legislative options to the government.

On account of the federal election, there was insufficient time for them to produce a report like that by their original deadline, which was November 15, so the current ministers of health and justice extended their deadline to December 15. They also modified their mandate by asking them to report not on legislative options, but only on the findings of their consultation activities.

The report before you has some preliminary chapters that discuss some of the things we've been talking about today—the division of power situation, the Carter ruling—followed by a number of chapters that recount the consultations and meetings they had, both with experts from the jurisdictions we've been talking about that have existing physician-assisted dying regimes, and with some Canadian experts and some stakeholders, such as some of the parties that were active in the Carter litigation, and others.

They are documenting for Canadians—but this will be especially important for this committee—the things they heard from all of those stakeholders and experts. They also posted online a questionnaire for Canadians to answer. One of the annexes at the back of the report will have a summary of the findings from the online questionnaire, which quite a number of Canadians filled out.

This was commissioned by the previous ministers of health and justice, but it's a report by an independent expert panel. The three members of the panel were Dr. Harvey Chochinov, who is a renowned expert in palliative care from Canada; Dr. Catherine Frazee, who is an expert in disability rights issues; and Benoît Pelletier, who is a law professor and an expert in division of powers and federal-provincial issues.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

Thank you.

So we have this piece, which I'll be taking home to read, as I'm sure everybody will. I wanted to make sure that we were gathering all of the work that had been done previously, just to build on the work that has happened. Is this the sole piece that came from the work or is this a companion piece to other things? I just hope that the committee will actually get the full resources on this file. I don't know if this is it or if there's more to come.

[Joanne Klineberg]

In addition to that report, at the same time that this panel was consulting with Canadians and experts on behalf of the federal government, the provinces and territories appointed an advisory group to undertake largely the same activity but in aid of the provincial and territorial objectives. They produced their final report in I think mid-December. That is available online. We can absolutely provide it to the committee if it's not otherwise available to you.

Many other exercises have been undertaken in Canada across the jurisdictions over the last year. Quite a number of medical colleges within each of the individual provinces have been examining the issue, and a number of them will have reports available online that you can look to. As well, just last week I became aware of a report by the University of Toronto Joint Centre for Bioethics. They created a task force to look at this issue. This report also has a lot of information and viewpoints.

If these are not already available to you through your clerks, please let us know, and we can ensure.... They are all publicly available documents.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

I think it would be helpful to have the committee somehow gather a bibliography of works and get it to us.

Another question I have is simply around the process of drafting legislation. What kind of time frame will the Department of Justice require once we get our work in to you? What does that timeline look like? Could you just give us a sense of what that process will involve?

[Joanne Klineberg]

I think what will happen is that this committee will make its report to the two chambers of Parliament. Then the ministers will consider the report. In the normal course, they would be discussing with their cabinet colleagues what the federal government's policy ought to be. From that process, we would receive instructions to draft legislation. How long that would take really depends on the detailed nature of it and the number and complexity of the issues.

[John Aldag, Liberal, Cloverdale—Langley City, BC]

What's the best-case scenario?

[Joanne Klineberg]

All I really feel comfortable saying is that we at the Department of Justice are very well aware of the timelines, and we know the committee is as well.

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

Thank you.

Mr. Arseneault now has the floor.

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

Before asking my question, I want to put it in context.

I read in the new Quebec law that for people who are severely disabled or incapable of asking for physician-assisted death, a third party could do so for them. There is no more explicit definition, but even though I am not yet an expert in this area, I imagine that that is included in the law. I believe something similar exists in Oregon, or in another state.

Do you have any specific examples of situations, from other states or other countries, where established criteria or parameters would allow a physician to receive a request from a third party, asking for physician-assisted dying on behalf of a severely disabled individual or a person unable to make that request?

[Joanne Klineberg]

No, I do not think that exists. The request must always come from the person who wants to die. Physician-assisted dying may not be requested by a third party.

There are, however, advance directives, that is to say situations where the request was made by the person before they lost their mental capacity. A third party can never make a request in that person's name.

I might mention a single exception, from The Netherlands. There is an agreement between physicians and attorneys that is known as the Groningen Protocol. It is mentioned in one of the documents prepared by the Library of Parliament. It discusses the euthanasia of severely disabled babies. This has not yet been included in legislation.

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

So it is a protocol, but it has not yet been included in legislation.

[Joanne Klineberg]

Yes, that is correct.

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

Nevertheless, it is accepted. It is being done.