Physician-Assisted Dying Committee on Jan. 25th, 2016

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

Thank you. If you have another list, I'm sure the senator would be happy to have it.

We have about a minute or two left in this round. As opposed to going to another questioner, I would like to ask one question.

From Health Canada's perspective, what is the difference between voluntary euthanasia and physician-assisted dying? I wasn't quite sure from your definitional answer. I understand involuntary euthanasia, but the difference between voluntary euthanasia and physician-assisted dying, because both have a volitional....

Would you have an answer?

[Abby Hoffman]

I suppose the most obvious dimension of it is that physician-assisted dying, providing an individual has gone through all the appropriate steps to demonstrate competence and informed consent and so on, could include advising an individual how to actually accelerate their own death, whereas euthanasia is actually the authorized medical personnel administering the medication, generally speaking, that would cause death.

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

But one death could be the same. It could be both.

[Abby Hoffman]

Well, I would say that voluntary euthanasia is one form of physician-assisted dying.

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

Okay. Thank you.

All right. Thank you very much. Thank you, witnesses.

We'll have a brief suspension of three minutes as we get the video conference prepared. Because we have an overflow crowd, I want to let you know that you have the option to stand. We hope to bring in some extra chairs, but the meeting is televised and is available in room C-160 if you'd like to sit and watch. However, you're also welcome to be here. Thank you.

We'll take three minutes to suspend, and we thank the witnesses.

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

I'd like to call the meeting back to order, please.

Thank you, Mr. Hogg, for joining us today.

In this second round we have Peter Hogg, who will be given 10 minutes to present to the committee, and then, by teleconference, we will have Monsieur Marc Sauvé and Monsieur Jean-Pierre Ménard, who will be sharing 10 minutes.

We'll begin with Mr. Hogg's presentation. After we have the two presentations, we'll begin our questioning.

[Peter Hogg, Scholar in Residence, Blake, Cassels, and Graydon LLP, As an Individual]

Thank you, Mr. Chair.

The committee has a written presentation from me. I think there is also a French translation, although I didn't deliver the text until Friday, as I had short notice. My presentation will follow that written piece, and of course I look forward to questions later.

With regard to my credentials, I am a constitutional lawyer and I have no expertise in physician-assisted dying, so I'm only going to be able to help the committee on constitutional issues. I've set out in the presentation the exact order of the court. I won't read it to you again because I expect you're sick of hearing it—or perhaps it would be a good idea to read exactly what the court said.

The court said that it was issuing “a declaration that s. 241(b)”, which is the aiding and abetting suicide one, “and s. 14”, which is the consent provision in the Criminal Code, “are void insofar as they prohibit physician-assisted death”—that is what the court said, and they didn't distinguish between euthanasia and physician-assisted suicide—“for a competent adult person who (1) clearly consents to the termination of life; and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.”

Under a previous Canadian government, Canada argued against this order on the ground that it was impossible to design effective safeguards to prevent error or abuse. There was a general agreement that if there was no way of preventing error or abuse, then clearly you couldn't have physician-assisted suicide. However, what the Supreme Court did was accept the finding of the trial judge, which was based on the experience of other jurisdictions that effective safeguards could be designed. Now, the trial judge didn't design the safeguards, but she said there was good evidence that they could be designed.

That's why the declaration of invalidity was postponed for one year. Of course, as you all know, it's been extended for a further four months. The idea is to allow Parliament or the provinces to design and enact appropriate safeguards. The role of this committee, of course, is to recommend the necessary legislation to Parliament.

You're all very much aware of the division of powers over health. Canada has the power over criminal law, and of course any regime of safeguards that you were to recommend would be a valid criminal law, because it would be added to the Criminal Code. It would be necessary in order to make provisions for physician-assisted dying effective.

However, physician-assisted death is one of the matters that is also within provincial jurisdiction, and already today I could hear a lot of questions about what the limits are. I would just say this about the provincial jurisdiction: although Quebec has already enacted an act respecting end-of-life care—and I'm sure it will be a very useful act when you design the federal act—it's very important to recognize that there's no guarantee that all provinces will enact statutes; therefore, you have to design a law that can be effective throughout the country, even on the assumption that there is no provincial law or no territorial law in part of the country.

In other words, you have to produce a self-sufficient act that could be operated even if the province in question did nothing. In a way, then, agonizing over the exact boundaries between provincial and federal power is not really necessary. What you have to do is design a set of safeguards that could work even in a province that did nothing. I think that's very important, because if Parliament does not enact a law that could be operated in a province where there is no law, the people of that province would be denied the right to physician-assisted dying, which the Supreme Court has said they have. That's one rather obvious point of view.

The next point I make in my paper is that although it would be very nice if the provinces all came out with uniform legislation, you have to recognize that it may not happen. One thing you can do is recommend a provision in the federal law that in effect provides what I call an “equivalence provision”, which in effect would say that if the federal Minister of Health or the Governor in Council—you could use any framework—is satisfied that a province or a territory has enacted safeguards that are substantially equivalent to the federal safeguards, then the federal law would not apply in that province.

The advantage of doing that is that it would avoid overlapping legislation. Also, if you don't do something like that, issues of conflict between the federal and provincial law will be quite complicated, and they will be resolved by the rule of federal paramountcy. That would be a bad situation. I think it can be resolved by a so-called equivalence provision.

In my paper, I give you two precedents for an equivalence provision. One is in the federal privacy legislation, which provides that the Governor General, if satisfied that the legislation of a province is substantially similar to part of the federal privacy legislation, can exempt the province from that part of the federal act. Orders in council have been published with respect to Alberta, B.C., and Quebec, so it's perfectly plain and obvious and publicly open that the federal privacy legislation is supplanted by the provincial privacy legislation in those three provinces.

I thought there was a similar one in the Canadian Environmental Protection Act. There is, and there are references to it. The reference to it is in my paper. It's a more limited one. It says that the minister and a provincial government can agree in writing that a province has a law that is “equivalent” to the federal environmental law. Then the Governor in Council can make an order declaring that the province is exempt from the federal regulation.

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

Could you wind up, please?

[Peter Hogg]

Yes.

That's the only point I want to make, except to say that I think there are other precedents out there. It's a very wise way of dealing with overlapping laws, and the committee should be aware that it can be done and it has been done.

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

Thank you very much, Mr. Hogg.

Now, we have the Quebec Bar, le Barreau du Québec.

Monsieur Sauvé.

[Marc Sauvé, Director, Research and Legislation Services, Barreau du Québec]

Thank you and good morning, Mr. Chair.

My name is Marc Sauvé. I am the director of research and legislation services at the Quebec Bar. I'm accompanied by Mr. Jean-Pierre Ménard, a lawyer recognized in Quebec for his expertise in health law. Counsellor Ménard was a member of the Quebec Bar working group on dying with dignity in 2010. He also chaired the committee of expert jurists created by the Government of Quebec to study the implementation of the recommendations of the Select Committee on Dying with Dignity of the National Assembly. The report of that expert panel was tabled on January 15, 2013.

The Bar has not taken a position on the amendments the federal legislator may make to the Criminal Code in the wake of the Supreme Court ruling in the Carter case. The Bar has thus kept all of its options open to respond to any future bill on this topic.

I will now yield the floor to Mr. Ménard, who will give the members of the committee an overview of the legal issues involved in the various options related to this legislation.

[Jean-Pierre Ménard, Lawyer, Barreau du Québec]

Thank you.

Mr. Chair, ladies and gentlemen members of the committee, we have in fact been working since 2009 on the issue of physician-assisted dying in the Canadian constitutional context. The Quebec Bar thanks the committee for its invitation.

This morning we simply want to convey to you a certain number of ideas on how the committee could approach these issues. First of all, there is a time constraint that is important. In addition, this matter is extremely complex and very broad.

We have to have a clear understanding of what the Supreme Court decided in the Carter ruling. It simply decided that two sections of the Criminal Code contravene the charter, and gave the federal government one year—plus four months, now—to amend the Criminal Code to make it comply with the charter. The priority in the short term is thus to amend the Criminal Code.

It is clear that the issue of physician-assisted dying goes beyond the strict limits of the Criminal Code. In that context, I agree with Professor Hogg's analysis, which is that this touches on many other matters that are for the most part issues of provincial jurisdiction.

When we examined how the recommendations of the Select Committee on Dying with Dignity of the National Assembly could best be implemented, we attempted to see whether, within Quebec's constitutional areas of jurisdiction, the province had sufficient powers to draft a law that could meet its citizens' wishes. We concluded that the province did have those powers.

Despite the fact of that there is no perfect demarcation between federal and provincial jurisdictions, in light of established jurisprudence we believed that there was room for the provinces to act, and even considerable room. In that context, it is clear that the federal government wanted to legislate and go further than the Criminal Code. This could be interesting, because it is important that Canadian citizens have comparable, though perhaps not equal, access from one end of the country to the other. Clearly, we have to find a process to achieve that.

The problem a federal law on this question may pose is that this legislation may be very close to matters the committee formed by the previous government had established. For instance, if the federal government drafts legislation that concerns palliative care, monitoring, the training of physicians and that type of thing, it would clearly be acting in provincial areas of jurisdiction. It is clear that any federal law on these matters could easily be subject to constitutional challenge by people who are opposed to forward movement in this area.

We believe that the important thing in the short term is that the federal government amend the Criminal Code. This could be done very quickly and simply by amending sections 14 and 241, stating that those sections do not apply when someone asks for physician-assisted dying and meets the criteria set out by the Supreme Court. In the short term, that could be sufficient.

If we want to go further, I think that the first step should be a federal-provincial discussion, since the provinces have primary jurisdiction over all of the issues I just referred to. I believe that this might be the safest process to consider.

You could also consider a statutory exception. That could certainly be justified constitutionally, but I think it may open the door to debate, and perhaps make things easier for those who wish to challenge this.

Quebec's experience has shown that a law on physician-assisted dying can contain sufficient safeguards. These are not the provinces' sole prerogative. Safeguards also come from the Canadian Parliament, for instance through the Criminal Code. That would be a first series of safeguards, but another set would fall under provincial jurisdiction. There are the rules on consent, monitoring, and so on.

Essentially, since the physician is the one who acts, the simplest process to monitor quality is to monitor physicians' activities. In every province there is a college of physicians that is very sensitive to these matters and fully qualified to take on that responsibility. In addition, provinces may also create other organizations on their territory to monitor and control the process.

I do not think it is relevant for the federal government to create a Canadian monitoring mechanism, because proximity is important. And of course, this raises the issue of monitoring all medical practice. Obviously, it could be difficult for the Parliament of Canada to legislate on that.

The right to physician-assisted dying has now become a constitutional right for all Canadian citizens. The debate is no longer about whether this is a good thing or not. Nor is this right subject to other conditions aside from the ones set out by the Supreme Court. The provinces, colleges of physicians and the Canadian Parliament may add other conditions, but the effect of that should not be to empty these things of their content.

In the short term what is important is amending the Criminal Code. If we want to go further it would be useful to divide the process up. First, we have to respond to the Supreme Court ruling through the Criminal Code. Then we have to take the time to establish a more general framework to consult Canadians. A second legislative process could then be established that would not be subject to the deadline set by the Supreme Court. The objective of this process would be to complete what the Criminal Code already contains. This would give us more time to hold a broader debate.

As to the conditions, when the federal government asked the Supreme Court for an extension, the reasoning was that it was important to establish rules to regulate behaviour and determine which acts are authorized or not. The Supreme Court has already answered these questions in large measure. As to knowing who has access to physician-assisted dying and under what conditions, the Supreme Court has already answered that too. Then there is the regulation governing those who act. Reference was made to physicians and the institutions where people would die.

The Supreme Court has established a primary, basic regime. For the moment, we can be satisfied with that framework. Should it be improved, and extended to minors? What about adults who are not mentally competent? Should we allow people to have access to physician-assisted dying only in hospitals, or also outside of their walls? Could other people aside from physicians provide that assistance? These are broader debates, and in my opinion it is not necessary to settle these matters or make those decisions now.

In the short term, let us deal with the Criminal Code. It could be changed very simply and quickly without modifying fundamental things, and we must ensure that we negotiate with the provinces. If we fail, the general legislation could be relevant. It is clear that if we adopt a general law without involving the provinces, we will be opening the door to some serious constitutional challenges. That is why I believe that in the short term it would be preferable to narrow our scope.

As to safeguards, we could take inspiration from the Quebec law, since it offers an excellent process in that regard. It is not perfect and it is not the only possibility, but it represents the results of six years of analysis, study, and public and legal debates. It could thus be a source of inspiration. Several provinces are now looking at what Quebec did, and it would be appropriate to take advantage of that.

This concludes my remarks. I will be pleased to answer the questions of the members of the committee.

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

Mr. Ménard and Mr. Sauvé, thank you.

We will continue questioning with Mr. Arseneault.

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

Thank you, Mr. Chair.

Mr. Ménard and Mr. Sauvé, thank you for the precious time you have shared with our committee.

I have a very simple question and I would like to hear what you have to say on this topic.

In the near term, we must respond to the Carter ruling. In short, we have to amend the Criminal Code, which can be done simply. How do you see this being done, in terms of the drafting of the legal text or amendments?

[Jean-Pierre Ménard]

Sections 14 and 241 were not totally invalidated. They were invalidated to the extent that they relate to physician-assisted dying. So, we can quite easily add a paragraph. I am giving you the simplest answer, but the analysis could be refined.

If you were in a hurry and simply wanted to align yourselves on the Supreme Court decision and the Charter, you could enact similar exceptions to sections 14 and 241. I have not done any final drafting exercises yet, but you could say that those provisions do not apply to a competent adult who asks for physician-assisted dying and whose state meets the conditions set out by the Supreme Court.

That would be the easiest common denominator to achieve something in the very short term. That exception could then be refined, among other things, to have it apply on condition that the physician's action be compatible with the provincial act or what have you. You can always add other elements to it. That is what you need to do if you want to deal with the most pressing matters and take your time to debate things afterwards. At this stage, you may want to avoid biting off more than you can chew, as the French proverb says.

In minimal terms, you could do that. You could also add regulations regarding access to assisted dying. For instance, should you limit that assistance to Canadian citizens in order to avoid “euthanasia tourism”? Are there other rules you can think of? Basically, you can at this time set limits.

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

Would there be risks, in your opinion, if we decided to limit ourselves to amending the Criminal Code provisions referred to in the Carter ruling? In attempting to respect that ruling, do we run the risk of including too much and interfering with provincial and territorial jurisdictions?

[Jean-Pierre Ménard]

It is clear to me that an exception to the Criminal Code is a matter of federal jurisdiction. That is why the exception does not need to be described extensively, nor include too many details.

The fact of saying that the Criminal Code may to some degree in this case obtrude on the provincial legislation is not heresy, and Mr. Hogg can confirm that. This could be done in the short term, which does not prevent the federal government from discussing things with the provinces, with regard for instance to having uniform legislation. This has been done in other health-related areas concerning organ donation, for instance. It was agreed to attempt to standardize laws throughout the country and that was done to a certain extent. So this would certainly not be the first time that we discuss standardizing legislation. That possibility exists if we want to respond to the Supreme Court's legislative requirement.

Aside from that, you could resort to a legislative exception, or negotiate with the provinces to agree on a broader regime that would develop the notion of safeguards, accessibility rules, monitoring and so on. I think both can be done. Must everything be included in a single bill? You must also consider managing your time and the content.

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

Thank you, Mr. Ménard.

I have one minute left.

Professor Hogg, thank you for being with us today.

[Peter Hogg]

I don't agree with that idea. I think that simply amending the Criminal Code in a way that basically just captured the order of the court would not respect the Supreme Court decision, because, remember, the argument against this was that there would not be safeguards against error or abuse.

I think this committee has to design and enact an amendment to the Criminal Code. I agree with Monsieur Ménard on that. However, the Criminal Code has a number of sections that are highly detailed, particularly where there is an exemption from prohibition of gambling or whatever it may be, so I think it's your duty to come up with something not unlike the Quebec act as an amendment to the Criminal Code.

I repeat: let's not be confident that the provinces will all faithfully enact legislation. Some of them won't; therefore, I think you have to provide something, not just in the short term, but something that can last and that would enable people in every part of the country to take advantage safely, with appropriate safeguards, of physician-assisted death.

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

Thank you, Mr. Hogg.

Mr. Warawa is next.

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

Thank you, Chair.

Professor Hogg, on your comments about equivalency provisions and your point that not all provinces may adopt this, for those provinces that do not, there would have to be a federal regime to fill that gap. You are suggesting that for those provinces that do adopt a regime, it would then be up to the provinces, providing it was equivalent to the federal regime.

[Peter Hogg]

Yes, it would be something that was substantially equivalent. It would not be exactly the same. It would be respectful of provincial jurisdiction, but it would have to have an adequate set of safeguards.

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

Thank you.

One of the challenges that we see is availability of health care. I asked the Library of Parliament to provide a percentage of availability of a family physician, province by province. In a number of areas it's extremely high in terms of Canadians not having access even to a family doctor. There was a previous discussion that in a physician-assisted death, a person should be referred by their family doctor to be considered, but many Canadians do not have access.

We also heard from the CMA. One of the physicians said in the CMA report that “My greatest fear is that people end up having easier access to lethal injection than palliative care....” We heard that it's only 30%, and that 70% of Canadians do not have access to palliative care. Access to palliative care will be different from province to province.

Highlighting on access to palliative care, one of the physicians said that “Negative self-perception and concerns about being a burden to others can often lead patients to consider physician-assisted suicide and euthanasia.” If one of the possible causes for people to consider physician-assisted death is that they do not have access to good palliative care—and it's different throughout Canada, and you're suggesting a federal regime—would you envision a federal regime whereby a euthanologist or a specialist who would assist or guide a person through suicide, or provide voluntary euthanasia, would be licensed federally within that regime?

[Peter Hogg]

No, I don't think you could construct something like that to be consistent with the Supreme Court decision. The Supreme Court talks about physician-assisted dying. You can't cure all of the faults and the inconsistencies in the health care systems across the country, and I think you have to respect the basic scheme that the Supreme Court has set out, such as the use, for example, of persons who are not physicians. Obviously there will be some role for pharmacists and other people, but the consent will have to be certified by a physician. That's what the court says.

Those are things that are not really.... The court was completely unaware of the circumstances in all the various provinces and territories too.

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

Thank you, Mr. Hogg.

How much time do I have, Mr. Chair?