Evidence of meeting #2 for Physician-Assisted Dying in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was physician-assisted.
A video is available from Parliament.
Senior Counsel, Criminal Law Policy Section, Department of Justice
Rarely, but, yes, it is done. In such cases, it is done at the request of the parents, and with their consent.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
In fact, the purpose of my question may be to avoid our going around in circles regarding what the Supreme Court of Canada is telling us in Carter. We are in a position to protect vulnerable persons, however section 14 and paragraph 241(b) of the Criminal Code are not convergent. We must always continue to protect vulnerable persons, but if someone can ask for assisted dying for another person, this could mean, in some respects, that we may fail to protect a vulnerable person.
That was the purpose of my comments regarding the Groningen Protocol.
Senior Counsel, Criminal Law Policy Section, Department of Justice
The court was very well aware that in a context where there is an absolute rule, but exceptions are being created, one exception could lead to another. In this matter, as my colleague said, no matter where we draw the line, there will always be people on either side of the line. Those who are excluded may always ask to be included.
We cannot foresee everything that may happen. However, if Parliament describes its objective clearly, the reasons that underlie it as well as the limits and the grounds that justify those limits, this will at least provide a context in which to study the cases that will come up. All that said, we cannot predict the future.
Liberal
René Arseneault Liberal Madawaska—Restigouche, NB
So, your interpretation of the Carter ruling is that it is absolutely impossible for a severely disabled person who cannot speak, to make his consent known through a third party. I am thinking of cases where people are incapable of speaking or moving.
Senior Counsel, Criminal Law Policy Section, Department of Justice
If a person is unable to speak but has another means of communicating, it is always possible for that person to make his or her wishes known. However, if the person has no means of communicating, we cannot know if the person understands. There is nothing in the Supreme Court ruling indicating that someone may give that consent on behalf of another person.
Liberal
Conservative
Gérard Deltell Conservative Louis-Saint-Laurent, QC
Thank you, Mr. Chair.
Ladies, welcome to your Parliament.
I don't want to tell you my life story, but I will say that I was a provincial member of the Quebec National Assembly for the past seven years, and as such I witnessed the work of the commission, and the work that led up to the adoption of that law. I was there right from the beginning and I am one of the 120 members who voted for it.
You mentioned, quite rightly, that this was often a battle of definitions. That is quite true, because in certain cases we talk about “physician-assisted dying”, whereas in Quebec the act that was passed refers to “end-of-life care”. We are talking about exactly the same thing, but with totally different words. Since we are legislators and the Supreme Court has ordered us to adopt a law, we have to bear in mind that words are very important.
In Quebec, they talk about “grievous and irremediable health problems” causing “persistent and intolerable suffering”. In your opinion, should the law the federal government will be putting forward for us to adopt include a definition of those words, that expression, so that we know what we are talking about?
Senior Counsel, Criminal Law Policy Section, Department of Justice
If I understood the question correctly, my answer is that Parliament may legislate as it sees fit, if justified.
Conservative
Gérard Deltell Conservative Louis-Saint-Laurent, QC
I know. I don't want to quote Churchill, according to whom Parliament can do what it likes. However, at the time there were no transgendered people, but now, there are.
But seriously, in your opinion, and in order to avoid all ambiguity, should the law contain a definition of the terms?
Senior Counsel, Criminal Law Policy Section, Department of Justice
All the words that need a definition should be defined, yes, absolutely.
Conservative
Gérard Deltell Conservative Louis-Saint-Laurent, QC
In that context, does that apply, in your opinion?
Senior Counsel, Criminal Law Policy Section, Department of Justice
There are a lot of words. And so the most pertinent ones have to be chosen, those that may be interpreted in various ways, that is to say narrowly or broadly. If the legislator has an opinion on the meaning he wishes to give those words, it is always better to be clear.
Conservative
Gérard Deltell Conservative Louis-Saint-Laurent, QC
Thank you very much.
Mr. Joint Chairs, if you read between the lines in all of this, you will of course understand that we want to protect the most vulnerable.
The most sensitive people of our community, we are there for them.
We have to protect them, and we must constantly have them in mind in the course of the coming days and months, during the legislative process we are undertaking today.
Ladies, in that same context, what should the law the government is going to propose contain in order to describe things, and especially to avoid potential blunders?
I'm doing this to help the government, you know.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I don't know how to answer you, other than by repeating things I have already said. Even the Supreme Court observed that vulnerable persons were at risk in several ways. For instance, people could ask for physician-assisted dying because someone in their family pressured them to do so. Or, a vulnerable person may not have access to other care, or was poorly informed on the state of her health. It could also happen that her understanding has been compromised by her mental state. There are several circumstances where there could be doubt as to the real wishes of a person who asks for physician-assisted dying.
In order to avoid blunders, abuse and errors, you have to put careful thought into what the risks are and try to find answers to minimize those risks. Generally speaking, that will be the objective.
Liberal
The Joint Chair (Mr. Robert Oliphant) Liberal Rob Oliphant
Thank you.
We're really blessed to have with us today two very fine public servants, and they are answering very forthrightly. I just want to remind the committee members that it isn't really appropriate to ask them what something should be. It's more important, more appropriate, to ask them what is, or what has happened, or something like that.
I just want to caution you. It has happened a couple of times now that we are putting them in a little bit of a difficult position by asking them what they think they should do. They can answer that somewhere else, but in this committee they're public servants responsible for making sure they help us with that.
You've been doing a fine job of that. Thank you.
Madame Sansoucy.
NDP
Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC
I am going to try to avoid doing what you just described. That said, I do like your analysis.
The provisions of the Act Respecting End-of-Life Care came into effect in December in Quebec. If I understood correctly, you told us earlier that our decisions must take into account the fact that laws in various provinces may be different.
I don't want you to tell us what we should decide, but according to your analysis and your knowledge of the Quebec legislation on end-of-life care, could it be a model that other provinces could follow? We heard that six years of work went into the making of that law. Do you feel that that law contains what a provincial law should contain?
Senior Counsel, Criminal Law Policy Section, Department of Justice
I think it is a good model, one that could give some indication to the other provinces and territories of all of the consequences and all the other legislation that will be affected by decisions on a law regarding physician-assisted dying. Moreover, certain aspects clearly fall under provincial or territorial jurisdiction. In the Canadian context, since that is the only model that exists for the other provinces and territories, yes, absolutely, it is a good model. However, I would say to everyone that it is worth examining all of the other legislation that exists on this matter, as there are other decisions that were taken, and other reasons underlying those decisions. In order to do work that takes everything that exists into consideration, you have to look at the whole picture.
NDP
Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC
Thank you.
I am going to give my remaining time to my colleague Murray Rankin.
NDP
Murray Rankin NDP Victoria, BC
I wonder if you could you tell us a little more about the Supreme Court and the components of the decision that deals with psychiatric or mental health issues. That came up earlier, and I think it's distinct from the Quebec bill. I wonder if you could give us some guidance as to what they said, so that we can consider how far we might go in that regard.
Senior Counsel, Human Rights Law Section, Department of Justice
I think the first thing to note is that because that wasn't what they were dealing with, we don't really have a clear answer that was part of the ratio of the decision or part of what they had to decide. There are some comments—and my colleague might have more at top of mind than I do—that they made from a policy perspective and that give us some clues. But again, like many other aspects of the judgment, the clues point in tension with one another in certain circumstances, so I don't think it's entirely clear. It certainly was not before the court.
I think it's fair to say that it would be open to the committee to consider psychiatric illness in the gamut of medical conditions that it has to consider. Whether it makes sense in light of your mandate to come up with some kind of permissive regime, that is a fair issue for the committee to consider, sort of de novo in a way, as to whether or not that should be included. I don't think you have a clear answer there.
Senior Counsel, Criminal Law Policy Section, Department of Justice
I may be able to add just a few more references to certain aspects of the Supreme Court's ruling that you might find interesting on this point.
The only place in the Supreme Court's judgment where it talks about mental illness is in paragraph 111, where it says:
Professor Montero’s affidavit reviews a number of recent, controversial, and high-profile cases of assistance in dying in Belgium which would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.
That's really the only place where it talks about it.
There are two other aspects of the court's ruling that I would bring to your attention, as you may find them relevant on this point. One is that there is a variety of places, mostly in the first half of the judgment, where it talks about Ms. Taylor and people like her and the kinds of conditions it had in mind. It mentions things like individuals with Huntington's disease or ALS, and individuals with terminal cancer. These are the kinds of medical conditions it actually talks about.
The final point that I would make that may be relevant is that a large part of the basis for the court's ruling that the absolute prohibition was unconstitutional was that it found that competence and vulnerability can be assessed on an individual basis. It said doctors already, when they're treating patients, individually assess that patient's mental competence, whether they're being coerced or making decisions that somebody else is pressuring them to make, whether they're thinking clearly. It was because the court had expressed confidence that Canadian physicians can assess both mental competence and the vulnerability of a person at the individual level that it felt the absolute prohibition was unconstitutional and you could provide physician-assisted dying to those who wanted it while protecting the vulnerable.
Liberal
Senator, Quebec (De la Durantaye), C
The Supreme Court decision speaks to charter rights not only of patients but also of physicians. Therefore, patients have the right to access but physicians have the right to conscientious objection. I'm wondering if you have any advice to offer us on how to reconcile what are potentially competing charter rights.
Senior Counsel, Human Rights Law Section, Department of Justice
As my colleague was mentioning, the issues around that and the approach that's taken as to how and when physicians may object is going to be a part of the provincial-territorial response, most likely. That, to my mind, would be one of the lower-order issues that arises for this committee in terms of what the federal response is going to be but at a very general level.
As with other cases where the court has had to deal with the issue of competing rights of different parties, it always comes down, at a very general level, to a kind of balancing and whether whatever balance has been struck is reasonable and proportionate in the circumstances. I would think overarching that would be the decision and the holding in Carter that there has to be access. That's sort of the baseline. Whatever approach would be taken to give appropriate respect and protection to the freedom of conscience rights of physicians would have to be reasonably balanced by access for the rights holders that were described in Carter.