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.