Medical Assistance in Dying committee  Well, to elaborate I would simply say that we know the rates of mental health challenges are extremely high among children with disabilities, and we also see those kinds of rates of struggle with respect to first nations kids living off reserve. We know that these populations will be most affected, as will kids living in poverty and isolation.

Medical Assistance in Dying committee  First, in terms of B.C. legislation, I don't know every province's variations. I do believe that decisions to get treatment are treated differently in law than decisions that result in end of life. For example, in the situation you mentioned, if a parent disagreed with the assessment that the person was mature enough to make the decision or the parent disagreed with the decision to end treatment, I believe this would be a litigated matter.

Medical Assistance in Dying committee  First, I'd say it's not discriminatory to exclude certain groups from MAID. We limit certain medical procedures to different age groups based on the risks. For this group, a lack of understanding of their fulsome future horizons, which is tied to the fact that their brains are still maturing, tells us that the risks are real and, given the finality of death, that the risks are acute.

Medical Assistance in Dying committee  I guess that depends on what you're talking about in terms of consent. If we're talking about medical treatments, the more serious the consequences of a treatment, the less likely it is that a court is going to say that a young person has the capacity. We can't really talk about capacity without also talking about what's at stake in either accepting or refusing treatment or asking for the intervention of the state to assist in suicide.

Medical Assistance in Dying committee  No, I don't agree. I think there's a substantial difference between withholding or ceasing treatment and the act of intervention of the state, with its resources, to end a life. I think we know that MAID is an exception to Criminal Code provisions that criminalize murder and assisted suicide.

Medical Assistance in Dying committee  Thank you, Mr. Chair. As mentioned, I'm a professor emerita at the University of Ottawa, where I taught criminal law and procedure for 34 years. I'm also the sister of Matthew, who has developmental disabilities and some physical disabilities. I have first-hand experience with the extraordinary wait-lists for supportive housing for people like my brother, and with medical professionals who repeatedly urged us to consider “do not resuscitate” orders when Matthew has required medical treatment.

Justice committee  It seems to me that extreme intoxication will be available for drug-induced psychosis, from what I can tell. I'm not sure if I am answering your question.

Justice committee  I'm sorry. I guess I don't understand the context of his remarks. Is he suggesting that the new legislation is too narrow or that our understanding of the defence of extreme intoxication is too narrow?

Justice committee  Well, I guess I can only repeat what I said, which is that I believe that drug-induced psychosis—because it does involve a break from reality—has the potential to be the basis for an extreme intoxication defence. I think the case law may be evolving to accommodate his concern that it's too narrow.

Justice committee  The hope would be that any of those amendments would change the worrisome spectre of prosecutions being dropped. This is not an exact science, obviously, drafting legislation and expecting to produce particular results. I think it's fair to assume that a change in the legal standard, as explained in the legislation, would have an impact on prosecutorial decisions.

Justice committee  Some of this is a policing issue. As you know, we have a very widespread, profound and persistent problem of police unfounding of sexual assault in Canada. The rates in some jurisdictions remain very high. Prosecutorial guidelines won't change that for those provinces that use police as their charging decision-makers.

Justice committee  As Professor Grant pointed out, it's entirely appropriate that the burden of proof be on the accused to prove, on the balance of probabilities, that they were in such a state. It's information and evidence in their hands, not the hands of the prosecution. Furthermore, it's not considered to be a normal state, that kind of state where the person is not operating with their body and mind together.

Justice committee  I think the difficulty with this legislation is that it suggests the Crown has to prove the foreseeability of loss of control and risk of harm. In particular, I think the second standard is going to be impossible for the Crown to prove. They're going to have to prove it beyond a reasonable doubt, and that's a very high standard of proof.

Justice committee  The complaint is its own evidence.... Go ahead.

Justice committee  Yes. That issue is not up for grabs. It's very clear that simple intoxication is not a defence for any of the kinds of crime we're talking about, general-intent crimes. It is a defence for specific-intent crimes, such as murder, for example, but not a defence for these crimes. The issue, however, from the point of view of complainants, police or prosecutors, is how to tell the difference.