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

[Peter Hogg]

Yes, I think that's right. The Supreme Court, in its order, spoke of a “competent adult person”. I don't think it would be open to you, for example, to have 16 as an age of consent for this purpose, because that would not be a competent adult person. Between 18 and 21, I would think you would have some leeway within the word “adult“ to decide that.

[Serge Joyal]

Okay.

The other thing that preoccupied me, Monsieur Ménard, is this.

The Quebec law was developed on the basis of Quebec's jurisdiction in health care. At this time we are talking about Parliament's jurisdiction with regard to the Criminal Code. Consequently our approach could be much broader than the one adopted by Quebec, which was determined by jurisdiction over health care matters. That is why I believe that the Quebec law in some of its provisions may be used as inspiration, but with regard to the definition in the Quebec act of

“terminally ill”, it doesn't exist in the Supreme Court decision that “terminally ill” has to be a safeguard. In my opinion, it's not what the Supreme Court decision provides.

So I think that by reviewing the Quebec act in connection with our role in defining

what “grievous and intolerable suffering” is, those are the two criteria. It doesn't mean that you also have to be terminally ill or that you have to understand that intolerable suffering needs to lead you to terminally ill.

I think that the Quebec law is good as such, with regard to the province's jurisdiction regarding health care, but it is restrictive with regard to the criteria contained in the Carter ruling.

Do you share that interpretation or analysis of the Quebec legislation?

[Jean-Pierre Ménard]

Absolutely. The Quebec act is more restrictive than what the Supreme Court allows in its Carter ruling. The law was passed before that decision was handed down. At the end of the legislative process Parliament is undertaking now, clearly Quebec is going to have to review its law to have it perfectly align with the Canadian Charter of Rights and Freedoms, as well as with the principles of the decision embodied in the Carter ruling.

The Quebec act contains certain criteria that make physician-assisted death an exceptional process and a last resort, that is to say when medicine has nothing left to offer and is in fact only prolonging suffering and indignity. That is essentially why the law is so restrictive.

The end-of-life care concept also was a part of the debate. If I remember correctly, the opposition put that concept forward. Those who were opposed to the law really wanted to limit its scope more. This was part of the political negotiations that took place in order to bring about support for the adoption of the act. That criterion is clearly not a part of the Supreme Court ruling. In my opinion this should certainly be reviewed if needed. I think that Quebec should wait for the Canadian government to make its position known, as well as the criteria that position will be based on, before it does its review.

You are right to say that your position is broader than what Quebec determined or defined. The Supreme Court did in fact give you more room to maneuver.

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

Thank you.

I now give the floor to Ms. Dabrusin.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Thank you, Mr. Ménard and Mr. Sauvé.

Thank you, Professor Hogg, for coming today.

You've suggested creating a comprehensive piece of legislation that can occupy the field when a province hasn't legislated. However, in the assisted reproduction case, the Supreme Court of Canada found that the pith and substance of legislation was deemed to be the regulation of the medical health profession.

How can we create such all-encompassing legislation while avoiding that type of finding?

[Peter Hogg]

The Criminal Code at the moment prohibits the aiding and abetting of suicide and prohibits consent of the victim as defence against murder. Those provisions will remain in place, so if we are going to have exemptions from those provisions, they will also have to be in the Criminal Code. That would be the criminal law power legislating the safeguards suggested by the Supreme Court and never departing from the criminal law. That's the difference.

In the assisted human reproduction case, I argued that case and I thought that the court was wrong in saying that it wasn't criminal law. In that case, they were not legislating an existing Criminal Code provision, but even in that case, some of the prohibitions were accepted, even if they had exceptions and exemptions.

I don't think that's a useful precedent. I think that the useful idea is that you are amending the Criminal Code.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

When we're looking at creating safeguards and we look at other jurisdictions, we see that they've had waiting periods as a part of their safeguards. If we were drafting legislation, would we, federally, be able to also create waiting periods?

[Peter Hogg]

Yes.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Going to another part of the constitutional aspect, is there a risk? If we created waiting periods, would that potentially pose a violation of section 7 of the charter?

[Peter Hogg]

No, I don't think so, because the court has mandated you to construct safeguards, and I think every reasonable person would agree that some waiting period is a desirable safeguard.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

In terms of our powers, if we were trying to create comprehensive legislation, would the ability fall to us to create a board or a commission to collect data and have some type of universal oversight across the country?

[Peter Hogg]

It would certainly be within Parliament's power to create an oversight and data collection body. I'm just a bit worried about what happens if quite a number of provinces have legislated and have been exempted from the federal legislation.

You would need the agreement of the provinces to have a comprehensive national data collection body and a monitoring body. You could certainly do that as part of the federal legislation, but if the federal legislation exempts a number of provinces, then that would be more....

Perhaps what one could do is exempt provinces from everything but the monitoring and data collection, but that would be very controversial in the provinces. It's a difficult issue, and I don't have a clear answer to it.

[Julie Dabrusin, Liberal, Toronto—Danforth, ON]

Mr. Ménard, if you don't mind I'm going to put my question in English.

I think there are only 20 seconds left?

Would you in Quebec have any ideas about provision of data to a federal body? Would there be consent for that?

There are only five seconds left.

[Jean-Pierre Ménard]

Unfortunately, I cannot speak on behalf of Quebec. I can say however that under the provincial law, each health care institution is going to report on a yearly basis on all of the physician-assisted death cases. That report will be sent to the Commission on End-of-Life Care. Every year, it will report the number of cases, the number of denials, and so on. So there will be a lot of data in the public space in connection with the application of this law.

I think that an array of data will automatically be accessible to the public across the country. I cannot unfortunately speak for the Government of Quebec, but let us say that this will already be in the public domain.

[Peter Hogg]

That's a very interesting point. Even without provincial consent, there may be publicly available data, as Mr. Ménard is suggesting, that a federal agency could obviously take advantage of, so there may be ways to handle it.

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

Mr. Albrecht is next.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you, Mr. Chair, and thanks to our witnesses for your presentations today.

Since 1991 there have been at least 15 initiatives in Parliament regarding implementing physician-assisted suicide, and in all of those cases members of Parliament have chosen to reject them. Some of the recent initiatives involved work on motion M-388 and Bill C-300, which calls on the federal government to implement a federal framework for suicide prevention, so I find it somewhat ironic that we're here talking about physician-assisted suicide at the same time that our federal government, the health department, and the Public Health Agency of Canada are actively working on implementing a federal framework for suicide prevention.

It's quite clear that physician-assisted suicide and euthanasia are irreversible actions, yet studies have shown that many patients who were interested in assisted suicide or euthanasia often change their minds. Certainly one of my primary concerns in the work that I've done on suicide prevention over the last number of years has been exactly that: protecting the most vulnerable Canadians at the most vulnerable points in their lives. We all know that depression is, by and large, a treatable condition, and it's questionable whether anyone in that condition is capable of making a rational request to have his or her life ended.

I want to refer to some of the jurisdictions that currently permit some form of assisted dying. Individuals who have mental health issues that affect their decision-making capacity are treated differently. For example, in the Netherlands individuals can use an advance directive to outline their wishes while they are still competent, but all of the U.S. states that allow physician-assisted suicide do not allow that, and I understand from Mr. Ménard today that Quebec is also in that group.

Mr. Hogg, in terms of access and in terms of protecting vulnerable people, from a legal perspective, what are some of the dangers of allowing individuals who do not have decision-making capacity to access physician-assisted suicide, and what protections could be put in place? You mentioned the waiting period. That is one possible protection, but I'd like you to outline others.

Then, are advance directives an appropriate way to ensure that individuals who lack this capacity are able to access physician-assisted suicide?

[Peter Hogg]

The court said that it had to be a competent adult person who clearly consents, and the waiting period, as you rightly say, is a help in being sure that we have a competent adult person and—something like the Quebec act—having a second physician interview the patient and form his or her view as to their competence.

I think part of your task is to figure out safeguards that would prevent a transient bout of depression from turning into a physician-assisted death.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

That would be my primary concern exactly. Every one of us in this room has gone through difficult periods in life, some of them extremely difficult, when such a decision could be made.

Obviously suicide is not a criminal act—

[Peter Hogg]

No.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

—or at least it's no longer called “committing” suicide. However, when you're asking someone else to act on your behalf, I think there are many more dangers involved. That's my primary concern.

[Peter Hogg]

Yes.

[Harold Albrecht, Conservative, Kitchener—Conestoga, ON]

Thank you very much for your response.

I will share the rest of my time with Mr. Cooper.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Thank you, Professor Hogg, for your presentation.

One of the tasks that Parliament will have to grapple with is this definition, provided in the Carter decision, of a grievous and irremediable condition.

I'm wondering about your opinion on the flexibility that Parliament has, for example, to impose a terminability limitation or criterion in legislation, having regard to the Whatcott decision, wherein the Supreme Court of Canada held that a high degree of deference would be afforded to Parliament in passing a complex regulatory response to a social problem or matter.

[Peter Hogg]

There will be some deference by the court to Parliament's choices in this matter—that is to say, your choices—but I do think there is a difference between procedural safeguards such as the time delay, the second physician, the signature in writing, and those kinds of things, which are all clearly within your mandate, and what one could describe as substantive safeguards, meaning that it has to be somebody who's already dying. Many of us would think that was a perfectly sensible safeguard, but that is not part of the court's elements.

If you put in some substantive requirements, such as requiring that it be terminal, you will certainly get challenges from people who want to avail themselves of the assisted-dying option. It would require a fair bit of tolerance by the court as to whether that kind of restriction would be acceptable. I don't rule that sort of thing out, but I think it would be better not to do that—not as a matter of policy, because I have nothing to say on policy, but just because it will make your law more vulnerable if it's a substantive safeguard as opposed to a procedural one.