Evidence of meeting #5 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 federal.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Joint Chair  Hon. Kelvin Kenneth Ogilvie (Senator, Nova Scotia (Annapolis Valley—Hants), C)
Benoît Pelletier  Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada
Nancy Ruth  Senator, Ontario (Cluny), C
Serge Joyal  Senator, Quebec (Kennebec), Lib
Judith G. Seidman  Senator, Quebec (De la Durantaye), C
James S. Cowan  Senator, Nova Scotia, Lib.
Jennifer Gibson  Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying
Maureen Taylor  Co-Chair, Provincial-Territorial Expert Advisory Group on Physician-Assisted Dying

6:05 p.m.

Senator, Ontario (Cluny), C

Nancy Ruth

Yes. It was on the 62%.

6:05 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Mr. Pelletier, do you have an answer, or would you like to respond after the meeting?

6:05 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

Concerning the representative sample for the question “To what extent do you agree or disagree that you...should be able to receive a physician's assistance to die” if you “have advanced dementia and cannot make decisions on your own”, what I see in the report is that 42% of people strongly agreed with that.

6:05 p.m.

Senator, Ontario (Cluny), C

Nancy Ruth

And how many agreed? There were two answers, “strongly agree” and “agree”. What were they combined? My understanding is that they made 62% combined.

6:05 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

Combined, it's 62%: 20% agreed, and 42% strongly agreed.

6:05 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Thank you very much.

Senator Joyal is next.

6:05 p.m.

Serge Joyal Senator, Quebec (Kennebec), Lib

Thank you, Mr. Joint Chair.

Welcome, Mr. Pelletier.

I would like to talk to you about item 2, which is titled “Mature Minors.” That is on page 54 of your report.

As you know, the Carter decision refers to competent adults. Yesterday, your colleague, Professor Hogg, said that there can be different ages of majority in the Criminal Code. In other words, people can reach the age of majority at 21, 18 or 16 years of age.

The Carter decision established that a competent adult had the right to physician-assisted death. I think that Parliament is not limited by that decision or by a strict interpretation of the definition of an adult. It is Parliament's duty to define what the mental capacity of an individual to express their decision and intention should be.

Setting aside what you noted in your report—especially when it comes to Ontario's Health Care Consent Act, 1996, which does not specify the age at which a minor can express their agreement or disagreement with a treatment—as a law professor, can you suggest what approach the committee should use to define the age of accessibility?

6:05 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

I first want to say that you are correct. The Parliament of Canada can go beyond the Carter decision, which adopts the principle that physician-assisted dying is accessible to an adult. Of course, that raises the question on who is an adult and at what age adulthood is reached. Nevertheless, Parliament can go beyond that decision and look to provide physician-assisted dying to minors who are capable of making decisions. For many people, the big question has nothing to do with age, but rather with decision-making capacity.

Parliament has the option to go further than the Carter decision. However, the Criminal Code of Canada currently sets that age at 18 years. In the provinces, the age of majority is 18 or 19, depending on the province. So it could be possible for Parliament to determine at what age someone is an adult and to apply physician-assisted dying only to adults, but it could also be possible for Parliament to open up access to physician-assisted dying even further by making it available to minors who possess, and I repeat, a decision-making capacity, but who are not adults, strictly speaking.

6:10 p.m.

Senator, Quebec (Kennebec), Lib

Serge Joyal

So should we not follow the same procedure as Ontario's Health Care Consent Act, 1996, which has been in practice for 20 years and which basically leaves practicians—the professionals—the role or responsibility to decide on the individual's mental capacity in the case of those referred to as “below the adult age of 18 or 21”?

6:10 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

That is clearly a possibility Parliament should look into.

From a strictly personal perspective—and I am not engaging other members of the committee here—I would say that the debates before the courts will eventually be based on the principle of equality. In the Carter decision, the Supreme Court of Canada settled the debate based of the person's right to life, security and liberty. It did not want to respond to the question based on the right to equality set out in section 15 of the Canadian Charter of Rights and Freedoms. There could be litigations before the courts where people will demand access to physician-assisted dying in the interest of equality. Those who advocated the most strongly for the application of physician-assisted dying basically told us that suffering is suffering, regardless of the age of the person suffering. That is clearly a powerful argument.

6:10 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Thank you.

Ms. Dabrusin is next.

6:10 p.m.

Liberal

Julie Dabrusin Liberal Toronto—Danforth, ON

Thank you.

You noted from your experience in investigating the European jurisdictions that when you visited them, there was general satisfaction with the laws. I would note that several of them do actually have permission for mental disorders or psychiatric disorders as a basis for physician-assisted dying.

You noted certain things that were requisites, and one of them was the safeguard of transparency. I wanted to ask you a little bit about oversight. How would you describe effective oversight for a physician-assisted dying system?

6:10 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

That idea of oversight is quite reassuring for the population. The population likes to know that there might be a body or different bodies collecting data and analyzing how physician-assisted dying is provided all across Canada, and maybe doing some study on the impact it has on human rights in general.

Many points of view were expressed concerning the mission of an oversight body that would be created. Some thought that it should only collect data, that the data should stay confidential, and that there should be a public reporting, or perhaps a reporting to Parliament. Other people went beyond that and said that the oversight body should really do a social analysis of the impact of physician-assisted death, and maybe have money in order to give subsidies to scholars to do research on different questions related to that issue.

It's not clear, either, that there should only be one federal body. There could be a federal body and different provincial bodies, or there could be only provincial bodies working co-operatively, working together, as in fact an interprovincial organization, which is possible. When we hear the word “oversight”, we should not necessarily think federal only. It may be federal, provincial, and territorial. In any case, it certainly reassures people.

Let me say this. In my view, there are four cardinal points, four fundamental points, that are reassuring people or that are important in that issue. The first one, of course, is access to physician-assisted death, as least as the Supreme Court of Canada has defined it in the Carter decision. The second is efficient oversight. The third is better palliative care. The fourth is robust safeguards for vulnerable people.

If you talk to anyone and you tell them that these are the four components of what the federal or provincial intervention with regard to physician-assisted death will be, people will be reassured, because there will not only be access to physician-assisted dying but also a commitment for oversight, a commitment for better palliative care, and a commitment for the protection of the vulnerable.

6:10 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Thank you.

Go ahead, Mr. Deltell.

January 26th, 2016 / 6:15 p.m.

Conservative

Gérard Deltell Conservative Louis-Saint-Laurent, QC

Welcome to your Parliament, Mr. Pelletier.

Mr. Joint Chair, I don't want to tell you our life story, but I am happy to see Mr. Pelletier again, as I knew him when he was an MP and minister in Quebec City, where I worked as a journalist. Later on, when I became an MP in Quebec City, he was a professor and commentator. I will not repeat what he had to say about my work right now, but we will talk about it later.

Mr. Pelletier, thank you so much. I want to thank your committee and thank you for doing such thorough and careful work. In less than five months, you produced a document filled with relevant information. Congratulations. I commend and thank you for that.

I would like to discuss two issues with you, one of which concerns the most vulnerable individuals. I would first like to talk about something that's right up your alley, cooperative federalism. Earlier, you talked about Canadian leadership. That is actually why we are here today.

Health care comes under provincial jurisdiction, but we have to know how much it will be affected by the Criminal Code. You are talking about Canadian leadership and cooperative federalism. So I would like to hear what you have to say about the following two hypotheses.

The Canadian government can set a specific limit to how far health care can go or it can instead leave it up to the provinces to define health care by limiting, in a way, the Criminal Code to allow the provinces to adjust. However, since we are basically talking about health care, which is entirely under provincial jurisdiction, that initiative should be the responsibility of each province. So every province will have the time to hold this debate, as Quebec has been doing for six years.

Do you think the legislation the federal government will introduce should be more specific, or should it instead give leeway to provincial legislative assemblies?

6:15 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

I think that the federal government should give the provinces considerable leeway to act on this issue, while perhaps legislating on matters such as age, which we discussed earlier. For instance, it could perhaps also legislate on the issue of residence requirements. In fact, if residence requirements varied from one province to another, there would be a risk of interprovincial tourism and perhaps even international tourism should a province lack residence requirements.

I feel that age and residence requirements are probably the two most obvious areas in which the federal government could potentially intervene. When we consider federal leadership or federal involvement, we can see a number of possibilities and scenarios.

In the first scenario, the federal government's involvement would be limited to the Criminal Code of Canada. So it would be fairly limited.

In the second scenario, an amendment would be made to the Criminal Code of Canada and to decisions of the Canadian Parliament, which would adopt measures on the eligibility and protection of vulnerable individuals. That would take matters much further.

In the third scenario, the federal government would adopt framework legislation in the hope that the provinces would support it. Another option would be to strongly encourage them to support it, or leave a lot of room for provinces and territories, since this is really about providing health care in physician-assisted dying, which basically comes under provincial jurisdiction.

I would like the federal government to leave a lot of room for the provinces. In matters like this one, I would hate to see the federal government becoming too involved because physician-assisted dying basically takes place in hospices, hospitals and palliative care hospices, which fundamentally come under provincial jurisdiction.

The vision Mr. Hogg has put forward is clearly that we can have a Canadian federalism. However, the vision I have been promoting for years is based on the existence of two levels of government in Canada, each with its own constitutional responsibilities, and not a single government.

6:20 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Senator Seidman.

6:20 p.m.

Judith G. Seidman Senator, Quebec (De la Durantaye), C

Thank you, Chair.

Thank you very much, Mr. Pelletier.

There have been suggestions—and you alluded to these in your presentation—that the federal government should amend the Criminal Code to allow provisions for physician-assisted death by a regulated health care professional, such as a registered nurse or nurse practitioner acting under the direction of physicians. Might we have the benefit of your view on this?

6:20 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

Yes, you've noticed that the Supreme Court of Canada talked about “physician-assisted death”, and in French we sometimes say “aide médicale à mourir”, which is of course larger, but the Supreme Court really talks about physicians.

Although the Supreme Court says that medical personnel should be protected, those medical personnel who participate in the treatment should be protected as well as physicians are.

To be frank, I don't have any specific idea about whether we should open the door for nurses or other medical personnel to give the treatment or to provide aid in dying, but I'll give you what is, again, my personal point of view. I realize how difficult it is for me tonight to at the same time represent my co-panellists and answer your questions as you probably are expecting me to do.

I would say that this is the first time that Canada is facing the challenge of physician-assisted death. I personally think Canada should proceed with very great prudence on that subject, acknowledging the decision of the Supreme Court of Canada, respecting the decision, but at the same time understanding that this is new for our country, and we as Canadians will have to adapt to it. When the adaptation has been done, then maybe there will be other steps that will be desired by the population itself. I would say that at first we should be extremely careful not to go too much beyond the Carter decision.

The Carter decision has indicated the destination. I think that for now, it's sufficient for the destination to be respected. I wouldn't suggest that this Parliament go far beyond that.

Again, this is a personal point of view.

6:20 p.m.

The Joint Chair Hon. Kelvin Kenneth Ogilvie

Senator Cowan, you will have the last question. We'll have to turn it around quickly, because the next panel has to be out of here at exactly 7:30.

6:25 p.m.

James S. Cowan Senator, Nova Scotia, Lib.

Thank you.

Thank you for being here, and thank you for the work you've done.

I want to return briefly to the question that Mr. Rankin asked you earlier with regard to the proposition that Professor Hogg put to us yesterday. I want to get your view as a lawyer and constitutional scholar as well about the authority that the Canada Health Act gives to the Parliament of Canada to act and to move in areas if the provinces or territories do not act.

I think what Professor Hogg was saying was not that we should assume that the provinces wouldn't act, but that we cannot assume that all of them will act and that all of them will act in a way that is consistent with Carter.

Does the Canada Health Act give this Parliament the authority to act in that situation?

6:25 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

Prof. Benoît Pelletier

I think the Constitution in general gives this Parliament such jurisdiction or such an authority. Again, the Supreme Court said that health is a shared jurisdiction and did not give any description or definition of what would be the respective jurisdictions of the provinces and of the federal Parliament. It could be through the Canada Health Act. It could be in an independent act, a stand-alone act, a new act on physician-assisted dying, for example, that would be adopted by the federal Parliament in addition to changing the Criminal Code.

I think what is important—and again, it is a personal point of view—is that, first of all, if the federal Parliament intervenes with regard to safeguards, it should also intervene in order to make sure that there is access all over the country.

6:25 p.m.

Senator, Nova Scotia, Lib.

James S. Cowan

To assure equality of access and opportunity, if that's the proper term—

6:25 p.m.

Member, External Panel, External Panel on Options for a Legislative Response to Carter v. Canada

6:25 p.m.

Senator, Nova Scotia, Lib.

James S. Cowan

—there is a responsibility on the part of the federal Parliament.