Welcome to this meeting of the Standing Committee on Justice and Human Rights.
For those of you on video, hello. My name is Anthony Housefather. I'm the chair of the committee. I'll be introducing you to people as we take their questions, going forward, but you can rest assured that you have all of the Liberal members, the Conservative members, the NDP members here with you, and we're all very anxious to hear your testimony. Thank you so much for joining us today.
Joining us today in the room we have one witness, Shanaaz Gokool, who is the chief executive officer of Dying With Dignity Canada.
On video, we have three groups. We have from London, Ontario the Christian Legal Fellowship represented by Derek Ross, the executive director, and Jonathan Sikkema, associate counsel.
From Toronto we have the Coalition for HealthCARE and Conscience, represented by Cardinal Thomas Collins, who is the archbishop of the Archdiocese of Toronto, and Laurence Worthen, who is the executive director of the Christian Medical and Dental Society of Canada.
Finally, we have the Canadian Civil Liberties Association, represented by Cara Zwibel, who is the director of the fundamental freedoms program.
Given that we are going to go to the video first, we want to make sure we take it in time. You all have eight minutes to deliver your remarks—we have four groups each with eight minutes—following which you will receive questions from all of the members of the panel, rotating between six minutes to the Conservatives, six to the Liberal, six to the NDP, six to the Liberals, and you can go back and forth with the questions.
We will start with the Christian Legal Fellowship.
Mr. Ross and Mr. Sikkema, please go ahead.
Thank you, Mr. Chair.
I am Derek Ross. I serve as executive director and legal counsel to the Christian Legal Fellowship. With me is Jon Sikkema, associate legal counsel at the CLF.
We wish to thank this committee for affording us the opportunity to make these submissions.
CLF is a registered charity and a national association of more than 600 legal professionals who share a commitment to the Christian faith. As an organization of lawyers, we seek to advance justice and the public good by drawing attention to fundamental principles of law.
One of those core principles is the sanctity of life, which the Supreme Court recognized as one of our most fundamental societal principles in Carter. That principle affirms that every person's life, no matter how old, disabled, or infirm the person may be, has inherent equal worth and value.
As the Supreme Court recognized in Rodriguez, the active participation by one individual in the death of another is intrinsically, morally, and legally wrong. That principle, expressed by Justice Sopinka, was not challenged or overturned in Carter, although Carter does now allow a legal exception to it in certain circumstances.
The challenge for us, and for you the committee and for Parliament, is the question: how can we best protect and preserve the equal value and inherent worth of all people in a post-Carter Canada?
We have framed our submissions in answering that question on the presumption that Parliament will legalize euthanasia and assisted suicide, which we'll refer to as MAID, in certain circumstances, although there are other and in our view more appropriate options available to Parliament, which we've explained elsewhere.
However, because the bill before this committee takes the path of legalization, we urge Parliament to be forward-thinking and to proactively guard against some of the negative impacts, perhaps unforeseen and unintended, that Bill might have—negative impacts that can be at least partially reduced with certain amendments that we and others recommend.
We urge Parliament to consider the following questions.
How will the legalization of MAID affect our societal attitudes towards suicide?
How might it contribute to normalizing suicide as a choice-worthy option, not just in the MAID context, but generally?
We know that the drafters of Bill are attuned to this issue, as the preamble acknowledges that suicide is a public health issue, not just a private one, and the Department of Justice's background paper also says that MAID is not being made available in wide circumstances, because that could undermine suicide prevention initiatives and normalize death as a solution to many forms of suffering.
The government is right to be concerned about those potential consequences and needs to be even more deliberate in guarding against them. We need to protect the efforts of physicians, health organizations, and charities to prevent suicide. We are concerned that such groups may avoid steering individuals away from suicidal ideations for fear that they will be seen as interfering with MAID or access to it.
This is evident in Quebec, where the college of physicians recently discovered that emergency room doctors were allowing suicide victims to die, when life-saving treatment was available. In media reports, the legalization of assisted death in that province was cited as creating ambiguity about the need to intervene. Parliament must eliminate any such ambiguity here and play a lead role in combatting the normalization of suicide.
What specifically can this committee do within the framework of this bill?
We say that Parliament should specifically affirm in the preamble to Bill that suicide prevention remains an important public policy goal. In addition, the preamble should state that sanctity of life remains one of Canada's most fundamental societal principles; that it is not contrary to the public interest to express the view that participating in causing a person's death is intrinsically, morally, and legally wrong; and that MAID should be considered only as a last resort, not as a measure to be presented to patients as just another treatment option among others.
This, in our view, is an important means of sending a clear signal, even if Parliament chooses to allow MAID, that MAID is not to be seen as a new normal medical response to suffering or even just as one option among and equal to others. This also means that Parliament should protect the charitable status of organizations devoted to preventing suicide as well as religious organizations and health care facilities that decline to provide MAID at their facilities, and should do so through clear amendments to the Income Tax Act, which we set out in our brief.
These amendments will serve to promote freedom of religion, conscience, and expression, but just as importantly, respect and preserve a medical and societal culture in which treatment is promoted as a solution to suffering, not suicide.
Similarly, we need to protect patients from being pressured to obtain MAID. Counselling or abetting a person to commit suicide will wisely remain illegal under this bill. This provision, section 241(a), addresses suicide only, and does not seem to address things like voluntary euthanasia, which is considered homicide and not suicide. This may be a drafting error, but either way it must be remedied. The reality is that patients will face external pressures to obtain and receive MAID. Bill acknowledges this. Under the legislation, as drafted, when this happens, the only consequence is that a patient may be considered ineligible for MAID, and only if the patient's doctor determines that the request was made because of, and a result of, that external pressure. Even if the physician determines that the patient was ineligible, the patient can still seek MAID from another physician, potentially under continued pressure from that same third party. The second, or tenth, or twentieth physician may fail to detect the external pressure on the patient. With respect, this is a significant oversight that leaves even the most malicious and prolonged forms of pressure and coercion seemingly free of prosecution. We recommend specific provisions to remove any ambiguity in this regard, and make it an offence to counsel, encourage, intimidate, or coerce a person to die by suicide or homicide, including euthanasia.
We also urge Parliament to explicitly protect the rights of those who object to participating in MAID, such as health care providers. I know others will be speaking to that matter this afternoon. In legalizing euthanasia, Bill places the most vulnerable members of society at risk. CLF endorses the recommendations contained in the Vulnerable Persons Standard. In addition, we recommend a number of amendments to Bill C-14, to protect the most vulnerable from abuse, which are set out in our brief. It is our submission that the court's ruling in Carter does not preclude Parliament from doing any of these things, and all of these provisions and amendments are necessary, not only to protect the vulnerable, but to preserve a culture that celebrates the equal and inherent value of every life.
Mr. Chair, members of the committee, on behalf of the Canadian Civil Liberties Association I want to thank the committee for the invitation to make submissions on Bill .
The CCLA fights for the civil liberties, human rights, and democratic freedoms of all people across Canada. Founded in 1964, we are an independent, national, non-governmental organization working in the courts, before legislative committees, in the classrooms, and in the streets, protecting the rights and freedoms cherished by Canadians and enshrined in our Constitution. CCLA's major objectives include the promotion and legal protection of individual freedom and dignity, and for the past 51 years we have worked to advance these goals.
Like many of the groups and individuals you may be hearing from, the CCLA was an intervenor in the Carter case. We argued in that case that the absolute prohibition on medically assisted death was a violation of section 7 of the charter that could not be upheld. The Supreme Court's decision clearly affirmed that this is the case and recognized that to deny assistance to individuals who were suffering from grievous and irremediable medical conditions violates their most basic rights.
The government's decision to table Bill recognizes the need for national legislation on this issue, and to a certain extent, some of the provisions in the bill are in our view in line with the court's decision.
We have concerns about some aspects of the bill, and in our view it suffers from at least one significant and fatal flaw. That is where I will begin to focus my submissions.
The bill defines who is eligible for medical assistance in dying by requiring a “grievous and irremediable medical condition”, and that language is in keeping with the court's language in Carter. But the bill goes on to define the criteria required for establishing that condition by stating that the individual's
||natural death has become reasonably foreseeable, taking into account all of their medical circumstances, without a prognosis necessarily having been made as to the specific length of time that they have remaining.
In our view, this requirement is not in keeping with the language or spirit of the court's decision in Carter. The focus of the ruling was on suffering and quality of life, not quantity. The reasonable foreseeability requirement will cause confusion, is unnecessary, and in our view should be removed. It's a clear departure from the court's decision and one that needs to be acknowledged and addressed by this committee.
The language of reasonable foreseeability is vague in the context of life and death: the death of every human being is reasonably foreseeable. Presumably this requirement connotes some proximity to a natural death, yet it's very unclear how this will be interpreted or assessed.
Adding to the confusion, the government has released background documents and the minister has made speeches suggesting that this requirement should not be a barrier for individuals such as Kay Carter, who suffered from spinal stenosis and was one of the people at the centre of the Carter case. Those explanations and justifications in our view do not sit comfortably with the bill's actual language.
If the government doesn't intend to create a barrier here, Parliament should amend the legislation accordingly. We have included a specific recommendation on this point in our written brief.
In particular, we propose that proposed subsection 241.2 (2) of the Criminal Code be amended to delete its paragraph (d) so that its remaining paragraphs would form the exclusive criteria for establishing a grievous and irremediable medical condition. We've included some language that we think should be added for greater certainty.
The second point I want to briefly address is the bill's exclusion of mature minors and its failure to allow for advance requests.
While the government's introduction of the bill was accompanied by a commitment to engage in further study on these issues, we are concerned that this further study will mean delays and suffering for individuals.
As I think we all know, the assisted dying issue is a controversial one. Parliament has in the past been unwilling to address the issue without the impetus of a judicial ruling. The fact that the Supreme Court's decision in Carter does not squarely address mature minors or advance directives does not in our view diminish the government's or Parliament's obligations to respect charter rights or to guard against needless suffering.
In CCLA's view there is no principled reason to distinguish between mature minors and competent adults, since the definition of a mature minor is someone who has been assessed to be capable of making a particular treatment decision. Amendments, in our view, should be made to allow for advance requests for medical assistance in dying where an individual is otherwise eligible. We see no principle basis to exclude an advance request when such requests are already permitted to allow an individual to consent to termination of life-sustaining treatment.
The third point I want to address is a smaller one, and it relates to one of the safeguards that's included in the bill, which dictates that a person's request for medial assistance in dying is signed before two independent witnesses. The bill goes on to exclude certain individuals from acting as independent witnesses. To be clear, CCLA doesn't object to this kind of safeguard in principle, but looking at the language of the safeguard, and who is excluded from acting as an independent witness, we are concerned it may be difficult to find individuals to fulfill that function. I am not sure how Parliament can best address this issue. It might be included in terms of a regulation-making power for the to address the permission of witnesses. We appreciate there are division of power issues here, but I did want to bring that issue to the committee's attention. In our view, failing to address it could pose a practical barrier for the effective implementation of this legislation.
Finally, I'd like to address a question in terms of the process before this committee. Witnesses invited to submit briefs to this committee were given very little notice and advised to keep written submissions brief. I appreciate your sitting tonight for a marathon meeting, and that a number of the meetings over the next few days are quite lengthy, but the committee is only spending four consecutive days on this important issue. The limits that are placed on the scope of submissions being made and the truncated timeline for consideration of the bill is cause for concern. We appreciate there was significant work done by the federal external panel, and by the interprovincial advisory group, and the special joint committee of the issue of physician-assisted dying, but the reality is this committee is the first opportunity anyone has had to look at a piece of legislation, and consider it, and make submissions in relation to it. This is an issue on which every Canadian is a stakeholder, and a more robust process for considering the legislation is warranted. We say this because the CCLA believes that the fact the declaration of invalidity will take effect in early June creates a legal vacuum.
The , in introducing this bill, has said the bill falls within the parameters of the Carter decision, but that if no federal legislation is in place on June 6, it's the parameters of that decision that will govern. While we do believe national legislation on the issue is important and beneficial for a number of reasons, this doesn't mean we should rush to enact a law that hasn't been sufficiently considered through a meaningful democratic process.
Good afternoon, and thank you for providing the opportunity to speak with you about Bill , legislation that will have a profound impact on Canadian society for years to come.
I appear today on behalf of the Coalition for HealthCARE and Conscience. Joining me is my colleague Larry Worthen, the executive director of the Christian Medical and Dental Society of Canada, which is a member of our coalition. We represent more than 5,000 physicians across Canada and more than 110 health care facilities and almost 18,000 care beds and 60,000 staff.
As we have previously stated, because of our mission and our moral convictions, we cannot support or condone assisted suicide or euthanasia. We understand, however, that the Supreme Court of Canada has directed the federal government to pass legislation on euthanasia/assisted suicide by June 6 and that Bill comes as a result of that decision.
Today we will address the need for amendments to Bill to protect conscience rights for physicians and health care facilities. Our members are committed to caring for their patients at every stage of life. We know what it is to journey with those who are facing great suffering in mind and body. We are committed to serving those who suffer with a compassionate love that is rooted in faith and expressed through the best medical care available.
What our members cannot do is perform or participate in what is being referred to as medically assisted death. To be clear, by participation I also mean playing a role in causing death by arranging for the procedure to be carried out by someone else through a referral.
We acknowledge that the draft legislation tabled on April 14 set aside, at least for the moment, some of the most disturbing recommendations from the parliamentary joint committee. We remain concerned, however, that the bill does not protect the conscience rights of health care workers and facilities with moral objections to euthanasia and assisted suicide.
We see no reference to conscience rights in Bill . The preamble to the legislation notes that the government respects “the personal convictions of health care providers.” While that respect is appreciated, it does not carry the same legal weight as legislative protection. No foreign jurisdiction in the world that has legalized euthanasia/assisted suicide forces health care workers, hospitals, nursing homes, or hospices to act against their conscience or mission and values.
It appears that the federal government is leaving this issue to the provinces and territories for consideration, but if the federal government enacts a law that establishes euthanasia/assisted suicide across Canada, it needs to provide robust protection of conscience rights across Canada.
It is essential that the government ensure that effective conscience protection is given to health care providers, both institutions and individuals. It is simply not right or just to say to an individual, “You do not have to do what is against your conscience, but you must make sure it happens.” It is equally unjust to require a health care facility to repudiate its institutional conscience or mission. We would note that no health care facility in Canada makes every procedure available to its patients.
We will continue to journey lovingly with our patients every day. We ask that you protect all health care workers and the institutions that are successors to the pioneers of health care in our country to ensure that they may continue their mission of care and healing.
Thank you, Cardinal Collins.
Members of our coalition support the right of patients to refuse or discontinue treatment at end of life, allowing the underlying illness to take its course.
We wish to make it clear that should Parliament legalize medical aid in dying, we will not in any way obstruct patients who decide to seek that procedure, and we will never abandon our patients.
We know there are many ways to respect patient decisions that do not violate the conscience of health care workers or institutions. The Canadian Medical Association and other experts have said there is no necessity for there to be a conflict between these two values.
Our own proposal recommends the use of transfer of care and direct patient access, so patients have the choice of staying with their physician for care or transferring care to another physician.
Facilities that cannot provide the procedure on their premises are prepared to help transfer patients to the facility of their choice if the patient so desires.
To force providers to act against their moral convictions is to breach section 2 of the Charter of Rights and Freedoms. We know hospitals and regulators all across the country are right now developing policies on this subject. For example, the College of Physicians and Surgeons of Ontario has already provided a provisional policy that will force doctors to provide a referral for euthanasia and assisted suicide. At the same time at least seven other provincial colleges have not taken that approach.
Legislation from Parliament would send a clear signal that the charter rights of caregivers all across Canada can be protected. Canadians should not have to deal with a patchwork approach.
Parliament has legislated matters that overlap into provincial or territorial jurisdiction in the past. Consider, for example, the Civil Marriage Act passed by Parliament in 2005 to legalize and regulate same-sex marriage. While marriage falls under provincial jurisdiction, this is federal legislation that governs marriage. The act contains language in its preamble and a specific clause recognizing that officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs.
Our coalition recommends Parliament use the same legislative approach in Bill , including language both in the preamble to the bill and in a specific clause that confirms that individuals or faith-based health care institutions that oppose euthanasia or assisted suicide are not to be compelled to engage in it and are not to be discriminated against as a result of their opposition.
Our proposed amendments to the preamble of Bill read as follows, and in the interests of time I will read two of those that we submitted in our brief.
|Whereas Parliament respects and affirms freedom of conscience and religion for health care practitioners and faith based institutions, and whereas nothing in this act affects the guarantee of freedom of conscience or religion, and in particular the freedom of health care practitioners and faith based institutions to refuse to provide or participate in the provision of medical assistance in dying.
Our proposed amendments to the body of the act would read as follows:
||It is recognized that health care practitioners are free to refuse to participate in medical aid in dying, either directly or indirectly, if doing so is not in accordance with their conscience or religious beliefs.
||For greater certainty, no person or organization shall be deprived of any benefit or be subject to any obligation or sanction under any law of the Parliament of Canada solely by reason of their exercise or refusal to exercise in respect of medical aid in dying of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.
In closing, we would like to mention that the Carter case clearly stated that no physician could be forced to participate in assisted death. The court also said this was a matter that engaged the charter freedoms of conscience and religion.
It is not in the public interest to discriminate against the category of people based solely on their moral convictions and religious beliefs. This does not create the kind of tolerant, inclusive, or pluralistic society that Canadians deserve.
Thank you to the justice and human rights committee for inviting Dying With Dignity Canada to this hearing today.
We have been on the assisted dying file for well over 30 years. If anyone recognizes the historic moment that our country is now in, we certainly do. However, we are very concerned about Bill and its unjustified deviation from many of the core recommendations of the special joint parliamentary committee.
We are concerned that the government's definition of “grievous and irremediable” does not meet the minimum standards of Carter. If Carter is the floor for assisted dying, we're now in the basement. We are also particularly concerned that there is not a provision for advanced consent for people who have a diagnosis of a “grievous and irremediable” condition such as dementia or Huntington's.
While Dying With Dignity Canada's policies are informed by our physicians' advisory council, we're not doctors and we're not lawyers. We represent the 85% of Canadians who support the Carter decision and the 80% of Canadians who support advanced consent with a diagnosis. As such, our organization has a responsibility to discuss the vulnerable groups of people who will be left behind if Bill is not substantively amended. The people I will mention today are but a snapshot representation of the thousands of Canadians who will not be able to find comfort in Bill C-14 and who may have to go to court to establish their charter right to die.
The following is not an exhaustive list of concerns, but it does highlight some key exclusions.
The government's legislation redefines “grievous and irremediable” and introduces new terms, such as “incurable”, “advanced state of irreversible decline”, and “reasonably foreseeable”. These new terms will exclude people who have serious chronic medical conditions and will exclude people who are not imminently dying.
So who are we talking about? Who's going to be excluded?
This is Linda Jarrett. Linda was diagnosed at the age of 50 with secondary progressive multiple sclerosis. At 68, she can no longer walk, and the years ahead are deeply troubling for her. She does not want to stay in a 24/7 long-term care facility for what could be years on end. She wants choice and the comfort of knowing that she will be able to make a choice, if her condition and her suffering becomes too much to bear.
This is Ronald Phelps with his daughter Laura. He had a debilitating stroke that left him bedridden and losing his ability to speak. Further complications meant doctors were going to have to amputate both of his arms and both of his legs. Instead, he chose to starve and dehydrate himself to death, which, as his daughter Laura said seemed really to be piling torture onto torture. Others like Ronald Phelps deserve compassion and choice, not more suffering to find peace.
Here is Drew Sperry, who died painfully from ALS and whose greatest fear was not dying, but living, in his own words, “trapped inside my body gasping like a fish on the wharf”.
Let's not forget about Jean Brault, a Quebec man who had a blood clot in his brain and over a period of years suffered from a series of debilitating strokes. Mr. Brault thought, when the legislation came into effect in Quebec, that it meant release from his torment. He was told by his doctors that he met the criteria: he couldn't walk, he was losing his ability to speak, and he was in an incredible amount of pain. But he was also told he wasn't dying fast enough, so he starved himself for 53 days and dehydrated himself for eight days before he was able to qualify for an assisted death. He told the media that he had to self-mutilate to be liberated from suffering.
The government needs to ask whether these are the only choices available to people like Linda, Ronald, Drew, and Jean: to suffer horribly for years or even decades before dying a protracted, painful death or to starve and dehydrate themselves to death, and now, with this narrow and restrictive legislation, to show courage in the face of their suffering and to go to court to fight for their right to die.
We ask that proposed section 241.2 be amended to use the court's language in Carter and to strike “incurable”, “advanced state of irreversible decline”, and “natural death has become reasonably foreseeable”.
Now I will turn to the issue of advance consent. Without advance consent people with a diagnosis for a “grievous and irremediable medical condition” such as dementia, Huntington's, or Parkinson's will face a cruel choice.
This is the one the courts sought to avoid in Carter, to try and take their own lives far too early while they may still have months, or even years left ahead, but while they are still physically and mentally able to do so, or to die in a manner they would describe as horrific.
This is Gillian Bennett, a B.C. woman who was diagnosed with dementia. In the summer of 2014 she took her own life while she was able to, and in her words “I, Gillian, will no longer be here. What is to be done with my carcass? It will be physically alive, but there will be no one inside”.
Here's Margot Bentley, a former dementia nurse who in a cruel twist of fate said she wanted to be allowed to die if she ever developed dementia. She has now been living and dying with dementia for 17 years. As her daughter Katherine says, she is indeed terminally ill, she and people like her. In 2011, in Canada, over 740,000 Canadians are living with dementia. That's 15% of the population over the age of 65. They are completely excluded from this legislation. They cannot ask for an assisted death in advance under this legislation, and they can't ask for it while they are still competent. They will not qualify.
In the summer of 2015 Lee-Anne Peters, who was 30 years old, took her own life after a number of attempts. She was in the mid stages of Huntington's disease, and she knew what was coming for her. Her mother Lisa said Lee-Anne prayed every day to be allowed to choose her own time where she could no longer enjoy life, but because there was no legislation, she was forced to end her life early, alone, and without friends or family, while she was still able to.
Gillian, Margot, and Lee-Anne represent hundreds of thousands of Canadians who have already been given a life sentence. By excluding advance consent, the federal government has acknowledged their Charter of Rights will be violated. The legislation must be amended immediately to include advance consent, or the federal government must provide a sincere commitment to ensure whole groups of people based solely on their medical condition are not discriminated against, and add a statutory mandatory mandate requiring an independent expert study of the issues with a prescribed deadline of 18 months to report back to Parliament with possible amendments to the Criminal Code. This remedy may also be applied for the inclusion of mental illness and competent minors.
In conclusion, if this legislation is not significantly amended then we can expect to see more seriously ill, chronically ill, sick, and dying Canadians who will have to go back to court to access what we believe will be their charter rights. Haven't enough sick and dying people already sacrificed so much for us, and haven't they already gone to court to establish the Charter of Rights for people who are grievous and irremediable ill?
Our view is that the issue of minors is something that's addressed regularly by people who are practising in the health care field. These decisions about who is a mature minor, and who can make treatment decisions, are decisions that health care providers make on a regular basis.
I think it's reasonable to assume, and it's important to understand, the mature minor decision is not a stamp you get at a certain age or at a certain point in time. The mature minor assessment is generally made in relation to a particular treatment decision. Someone would be assessed in relation to this particular treatment decision. Are they capable of making a decision to request assistance in dying?
I think it's reasonable to assume that physicians who are charged with making those decisions are likely going to have a higher bar than they would for other types of treatment decisions, such as can you consent to a blood transfusion, or can you consent to surgery or to emergency treatment.
The idea behind a mature minor assessment is you're someone who can make a decision with the same capacity as an adult, and there isn't, in our view, a principle basis for distinguishing.
I appreciate there are concerns. I guess I have confidence our medical professionals are not going to view this decision lightly. They are going to take this responsibility very seriously. I think that's implicit in the fact the legislation does vest so much power and influence in the assessments of medical professionals. We think that's how you would address it.
I appreciate it's a complicated issue, people are concerned about it, and it certainly makes people uncomfortable to think about young people choosing to end their lives. To the extent the committee does decide this is something that requires further study, then I certainly agree with Ms. Gokool from Dying with Dignity that there should be a timeline put on this consideration, so we don't wait and have people suffering because Parliament is unable to act.
We're going to reconvene. I would like to thank our next witnesses, who are all by video conference, for having joined us. I hope you can all hear me.
My name is Anthony Housefather, and I'm the Chair of the committee.
As we go, I will introduce you to the people who are going to be asking you questions. We're going to start with each of you, or each organization, having an eight-minute presentation: there are three. That will be followed by a round of questions where we will have the Conservatives asking six minutes of questions, the Liberals asking six, the NDP asking six, and the Liberals six. We'll then see if we have any time for a speed round.
I would ask all of you to keep your remarks to eight minutes. That would be much appreciated. If you would stick to proposed changes to the legislation, as opposed to general overviews that might have been heard by the special committee, that would also be appreciated. We're not here to reinvent what the special committee heard. We're here to talk about the proposed law.
I would like to introduce, as an individual, Ms. Carrie Bourassa, who is a professor of Indigenous Health Studies at First Nations University of Canada. Welcome.
From the Alliance of People with Disabilities Who Are Supportive of Legal Assisted Dying Society, we have Margaret Birrell, who is a board member, and Angus M. Gunn, who is a counsel.
From Communication Disabilities Access Canada, we have Hazel Self, who is the chair of the board of directors.
Welcome all of you.
We will start with Ms. Bourassa. The floor is yours.
Thank you. I hope I've prepared this properly. I apologize if I haven't. At the last parliamentary committee where I was asked to present, I read something in a similar format, but not the same content. Forgive me if I haven't done it correctly.
I want to start by saying that in terms of the bill that's being proposed, many first nations communities are not fully prepared for the implementation of Bill . For that matter, in my opinion, neither is the Canadian health care system, due to the interconnectedness of the ongoing oppression, especially the intergenerational effects of the residential school system and the lack of general awareness of this ongoing oppression, as well as the need for further development of cultural safety models in health care systems.
The First Nations Health Authority states that today first nations are still affected by colonization and assimilation, systemic discrimination and racism; child apprehension; land dispossession; loss of tradition, language, and culture; the legacy of residential schools; and intergenerational trauma and its effects. The residential school system and intergenerational trauma often overshadows the other forms of ongoing oppression, and rightly so, due to the recent conclusion of the Truth and Reconciliation Commission.
As a result of the residential school system and its intergenerational effects, first nations are likely to suffer from mental health issues, including depression and suicidal ideation. This would include the older aboriginal population. While attention has been most recently focused on the epidemic of youth suicides in first nations communities, globally, suicide in many countries is as high or higher than suicide rates for young people. Due to the current research gaps in the area of aging for the older aboriginal population, this is an area clearly in need of further research in order to understand how the elderly are being affected by suicide.
The older aboriginal population could be more at risk for suicidal ideation due to the cultural genocide of the residential school system, whereby the loss of parenting skills that allowed for a child to grow in a traditional home environment and learn cultural norms; the loss of traditional healing methodologies; and the loss of traditional knowledge and history, including gender roles and the role of the elderly in society, were significant impacts.
Included in the loss of traditional knowledge and history would be whether assisted dying was practised, and if so, under what circumstances. The high suicide rates in the aboriginal community, combined with the loss of the aforementioned, create a situation where the introduction of assisted-dying legislated practices could create significant problems. How will high rates of suicide among the elderly affect their ability to neutrally determine the right to die? How will a lack of knowledge of traditional customs affect the ability of the elderly to determine the right to die?
The intergenerational impacts of the residential school system discussed for the elderly are just as applicable for the ill and the disabled. How does a significant loss, the cultural genocide of the residential school system, impact first nations today in the valuation of their lives?
When first nations communities can positively state they are in a period of stabilization in terms of community wellness, maybe that would be a time to consider introducing such legislation, but not now when too many communities are just beginning to recover from ongoing oppression, and particularly that of the residential school system.
The Health Council of Canada calls for awareness and understanding of the history of colonization, institutional discrimination, and power imbalances when cultural safety models are developed and implemented. The ongoing oppression of first nations is not well known to the general Canadian public or to health care practitioners, despite some efforts, including an understanding of this, such as mandatory introductory courses on indigenous health for nursing students offered here at First Nations University of Canada.
Regardless of these initial efforts, cultural humility, a key component of cultural safety, reminds us that a four-month class or a 12-hour course is not the equivalent of a lifetime of enduring the impact of ongoing oppression. Ongoing relationships between patient and health care practitioner need to be developed and nurtured in order to create trust for the patient.
Relationships such as these take time.
Evidence of the general lack of cultural awareness and sensitivity can easily be found in the media when familiar former political figures offer relocation strategies for youth suicide epidemics in northern remote first nations communities. The lack of mass Canadian public outcry at this strategy is indicative of the systemic problems that need to be overcome.
Without relevant cultural safety models being implemented for health care practitioners to offset the historically compounded views of first nations in society and academia, what kinds of relationships will health care practitioners have with first nations patients who are elderly, ill, or disabled? Will it be a long-term relationship, or two strangers meeting to decide life or death?
Will it be remembered that first nations have a wealth of knowledge and history that at times needs to be nurtured back from the effects of ongoing oppression, especially the residential school system? Will the resiliency of first nations, a clear reminder of how first nations have endured and overcome adversity, be remembered?
Without an understanding of this, would it not be too easy for a client to accept assisted dying without truly giving informed consent, or a health care professional to accept such flawed consent?
Meegwetch, and thank you.
Honourable members of Parliament, Mr. Chair, thank you for the opportunity to appear before you this afternoon. Before you is Margaret Birrell, who is president of the alliance. My name is Angus Gunn, and I have served as litigation counsel for the alliance since 2011.
I have been asked to deliver some prepared remarks, and Ms. Birrell will be pleased to respond to any questions the committee might have.
The members of the alliance that I represent are leading advocates for disability rights. The alliance sought and obtained intervenor status at all three levels of court in the Carter litigation to advocate for the right that was ultimately recognized by the Supreme Court of Canada.
In these prepared remarks, the alliance makes four recommendations for suggested amendments to Bill . The first is to restore the efficacy of advanced directives. Bill C-14 does not take up the special joint committee's recommendation that the use of advance requests be permitted. The charter rights of those who suffer from dementia are not less deserving of protection just because their enduring and intolerable suffering results from an illness that also robs them of decision-making capacity.
The government has provided two rationales for excluding advance directives, neither of which we say withstands scrutiny. The first is:
||Advance directives generally do not provide reliable evidence of a person’s consent at the time that medical assistance in dying would be provided.
Advance directives do provide highly reliable evidence of a person's consent while the capacity to give consent is intact. Dementia ultimately destroys the capacity to give consent. To insist on such consent at the time of medical assisted dying is to require the impossible. Are there really individuals who decided they would rather die than weather the storm of Alzheimer's for example, but then later change their mind because Alzheimer's isn't so bad after all? Even if these people do exist, why should their vulnerability trump that of the thousands of individuals whose wishes have not changed, but whose illness robs them of the ability to confirm that fact. Why is the blanket ban the Supreme Court of Canada rejected for sufferers of ALS acceptable for sufferers of dementia? Excluding advance directives will cause needless suffering for thousands of Canadians and will condemn us to protracted charter litigation simply to define the perimeter of Carter's cruel choice.
The second rationale offered by the government is that disallowing advance directives guards against the effects of inaccurate assumptions about quality and value of life. The reality of Alzheimer's at late stage is not a matter of assumption. If a competent individual makes an informed decision that at a certain stage of decline the quality and value of life will have degraded to a point where medical assisted dying is desired, why isn't that decision entitled to respect? Who is the state to discard that decision as reflecting inaccurate assumptions? The alliance urges the committee to restore the efficacy of advance directives in relation to medical assisted dying.
The second amendment is to remove the requirement that death be reasonably foreseeable. Bill rations the availability of medical assisted dying upon an individual's natural death being reasonably foreseeable. Nowhere is that requirement visible in the Carter decision. To the contrary, Kay Carter suffered from the non-life-limiting, non-terminal disease of spinal stenosis.
The government suggests that to permit medical assisted dying for those not approaching natural death could undermine suicide prevention initiatives, could normalize death as a solution to many forms of suffering, or could de-prioritize respect for human life and equality.
These objectives are already well served by other elements of the Carter test, including the need for a grievous and irremediable illness or condition, the need for enduring an intolerable physical or psychological suffering, the requirement that suffering be incapable of relief, the need for a medical or nurse practitioner opinion, and the 15-day waiting period. The controversy over whether Ms. Carter could have won her litigation, but be ineligible under Bill , illustrates the problem with this provision.
Wherever one lands on that debate, Canadian criminal law adheres to the principle of certainty. Prohibited conduct must be fixed and knowable in advance. It offends this principle for conduct to be criminalized, or not, based on a case-by-case application of ambiguous concepts such as “reasonably foreseeable” and “not too remote”. Canadians who experience intolerable suffering, and physicians who wish to assist, should not have to guess about the criminality of their actions based on a retroactive application of concepts with no settled meaning. The alliance urges the committee to remove the requirement that natural death be reasonably foreseeable.
The third reform is that independent recommendations on mature minors and mental illness should be required by statute. At the moment, the preamble to Bill makes only a non-binding pledge to explore these other situations, but these topics are too important to be left to such an uncertain process. The act, we submit, should mandate a panel of independent experts be asked to make recommendations on these two subjects on a defined and limited deadline.
Finally, the alliance urges that two legislative drafting choices that are visible in Bill should be amended. First of all, Bill C-14 confusingly uses the word “they” to refer to individuals. An example is subsection 227(1), which says:
|| 227 (1) No medical practitioner or nurse practitioner commits culpable homicide if they provide a person with medical assistance in dying in accordance with section 241 (2).
This use of the singular “they”, aside from being jarring to the eyes and ears, fails to harmonize with the bulk of the Criminal Code, which generally achieves gender neutrality not by using the singular “they”, but rather by using such phrases as “that person”, or “the person”, or “he or she“, or “his or her”. Alternatively the provisions can be reworded altogether to avoid the problem: “No valuable practitioner commits culpable homicide who provides a person with medical assistance in dying.”
Bill also uses em dashes in several clauses, which make for complicated and lengthy clauses that need to be read multiple times just to be understood. It also inappropriately demotes, as parenthetic asides, language that plays an important role in the bill itself. Clarity and ease of reference would favour the use of lettered subparagraphs instead.
The alliance thanks you again for the opportunity to provide these prepared remarks and to participate in the important work of this committee.
Good afternoon, ladies and gentlemen. I want to present a rationale and propose two amendments to Bill to ensure that people with speech and language disabilities are given appropriate communication accommodations and supports in order to provide informed consent in the context of medical assistance in dying.
I am chair of the board of Communication Disabilities Access Canada, which is a national non-profit organization that promotes accessibility and human rights for over 450,000 people in Canada who have speech and language disabilities due to disabilities such as cerebral palsy, autism spectrum disorder, fetal alcohol syndrome, cognitive delay, Down's syndrome, traumatic brain injury, aphasia after a stroke, dementia, ALS, Parkinson's disease, Huntington's disease, and multiple sclerosis.
Bear in mind that with any condition I've just mentioned, the individual could be also suffering from terminal cancer. They may have cerebral palsy but also have cancer.
A person with a communication disability may have speech that is slurred or difficult to understand, or they may have little or no speech and communicate by pointing to letters, symbols, or pictures, or by using a communication device. Some communication disabilities, such as aphasia after a stroke, impact on a person's ability to understand and process what others are saying, but do not affect their cognitive ability to make decisions.
The incidence of speech and language disabilities increases with age and includes people with pre-existing and age-related disabilities, as well as communication challenges related to typical aging, such as hearing and vision loss, reduced comprehension of complex sentences, and word-finding difficulties.
Effective communication is essential for all patients facing end-of-life decisions. Successful communication is a two-way process in which messages are correctly and unambiguously understood by both the patient and the medical practitioner. This includes getting and understanding information about one's diagnosis, prognosis, treatment, and palliative options, weighing up information to reach a decision, and communicating that decision and the reasons for the decision.
These are complex communication issues for anyone and are further compounded for people who have compromised speech and language abilities due to disabilities that affect their ability to understand spoken and written language, retain options and appreciate consequences to options, and to ask questions, give opinions, and communicate a decision. However, with appropriate communication accommodations and supports, many people with speech and language disabilities can make and communicate informed decisions.
There is ample evidence to demonstrate that many people with speech and language disabilities experience significant barriers when interacting with medical practitioners about their health care, and specifically within informed consent situations. Unlike people who are deaf and who may require sign language interpreters, or people who require oral translators, there are currently no protocols or directives in place to ensure that people with speech and language disabilities are provided with appropriate communication accommodations and supports.
People with speech and language disabilities report that health care professionals often overlook and misunderstand their wishes. They are very anxious about the lack of safeguards in Bill . They report that medical practitioners often do not know how to make spoken or written information accessible to them; do not understand what they are communicating when they use ways other than speech to convey their messages; assume their speech and language disability is a cognitive disability; underestimate their capacity to make their own decisions and end-of-life directives; defer to family members and personal support staff to communicate on their behalf; and rely on untrained people to assist with their communication where an arm's-length, mutual, qualified professional communication assistant is required. They also undervalue, typically, the quality of their life and their need for health care interventions.
CDAC is asking for stronger safeguards for people with communication disabilities. These safeguards must include a directive to medical practitioners to engage a communication professional to assess the patient and to provide any required accommodations and supports.
We are proposing the following amendments to to ensure that people can effectively communicate about medically assisted death. If there is any question about the communication process as identified by the medical practitioner or the patient, then a neutral independent professional with expertise in the patient's communication needs must be engaged in order to assess the required communication accommodations and/or to provide direct communication support. Communication accommodations and supports are required if the patient has challenges understanding information provided to them, retaining and weighing out the consequences of options as part of the decision-making process, and accurately and authentically communicating their decisions. Communication accommodations include picture or letter boards, speech output devices or communication support from a sign language interpreter, deaf-blind intervenor, speech language pathologist, language translator, or cultural interpreter.
Our second directive has to do with the subclause titled “Unable to sign”, regarding proposed subsection 241.2(4),
||If the person requesting medical assistance in dying is unable to sign and date the request, another person—who is at least 18 years of age and who understands the nature of the request for medical assistance in dying—may do so in the person’s presence
to which we would like to add “under their direction on their behalf”.
Thank you for your comments.
It is quite confusing. The reason I mentioned the suicides is exactly that. When we have incredible rates of suicide right now, it is the last thing people are thinking about when I talk to them about medically assisted dying, physician-assisted suicide. They are thinking about all the suicides they are trying to prevent in their communities, and it is a difficult topic to even think about in many cases.
Having said that, it is the case that we have extremely high chronic diseases and lots of palliative care issues. I have worked in palliative care for 10 years, and we see more and more young people in palliative care. We have a crisis on our hands.
It is very confusing. In terms of what can be done, there are a few things. I think the communication around medically assisted dying in communities is really important. One thing that I think is difficult for you to do—because the bill is already going through—is to open up those lines of communication with first nations communities around medically assisted dying: how it could be beneficial in communities, and what that might look like for different communities.
I think that sometimes first nations communities are brought in at the end of things, and that is frustrating for them because it is not a chance to really engage communities at that point. I think communication is one thing.
The other thing is that cultural safety training is real, and it is important. At this time, I think we are experiencing first nations people feeling unsafe in many respects, or else not having access to care.
This is a worry for me and for many people. If people are ever going to engage with this, understand what it is, if they were to access it, who is going to be engaging with them? Are they trained? Are they going to understand their communities? Are they going to be culturally competent and safe clinicians working with them? That is a real issue.
Also, think about investing in the communities themselves, about aboriginal navigators in communities where there are these exacerbated suicide rates.
I think those are some things that could be considered by the committee.
Perhaps I'll field that one.
I think it's understood that in Carter “the right to life, liberty and security of the person” is engaged by legislation that would prohibit an individual's right to self-determine their own medical treatment and choices. The question would be not whether there's a breach of life, liberty, or security of the person, but rather whether it's being done “in accordance with the principles of fundamental justice”, which is the language at the end of section 7.
Again, in the Carter case, the court seemed to have little difficulty in concluding that the infringements that were considered in Carter were not done in accordance with the principles of fundamental justice. In my submission, the same conclusion would flow here.
The fact of the matter is that Carter was being decided in a factual context, and none of the plaintiffs in Carter were individuals who were trying to rely on advance directives, so obviously the court decided what it had to. That wasn't an issue before the court, but in my submission, the analysis that was used by the court in Carter applies with equal strength to a person in the situation of someone who is having to rely on an advance directive.
The only distinction, of course, is that the person relying on the directive is unable to, as it were, repeat the provision of consent at the time of the medically assisted death. That's the only factual difference, but in my submission, that does not give rise to any legal distinction that permits that case to be distinguished from the people who were under consideration in Carter.
Take your seats please.
We are back in session.
I want to thank all of the members of this witness panel for joining us. It's a great pleasure to have you here.
I believe we have Mr. Smith on video.
I just want to explain what is going to happen. There are three groups presenting, and each group will have eight minutes to present, and then you will receive questions from the MPs. You will receive six minutes of questions from the Conservatives, six from the Liberals, six from the NDP, and then we'll see how much time is left.
I'm very pleased to introduce Mr. Derryck Smith from Vancouver, who's testifying via video conference as an individual. It's a pleasure to have you, sir.
From the Euthanasia Prevention Coalition, we have Ms. Amy Hasbrouck, who's the vice-president; and Mr. Hugh Scher, who's the legal counsel. It's a pleasure to have you with us.
From the Association for Reformed Political Action, we have Mr. André Schutten, who is the legal counsel; Mr. James Schutten; and Mr. Pieter Harsevoort. It's very nice to have all of you here.
Mr. Smith, the floor is yours.
My name is Derryck Smith, and I'm a medical doctor and a practising psychiatrist. I appreciate having the opportunity to speak to the committee, and I particularly admire the hours that you're keeping in bending your minds around this thorny issue.
My name is Derryck Smith. I'm a medical doctor and a practising psychiatrist in Vancouver. I was an expert witness in the Carter case, and I'm on the board of Dying With Dignity Canada, but I'm presenting my own personal views tonight.
My amendments, which are in my brief, really try to get us back to the recommendations of the special joint committee and the language of the Carter decision.
The issues that resonate for me with this issue have to do with the autonomy of individual citizens in terms of the autonomy to control our lives and the autonomy to have some control over our deaths. This was first articulated by Sue Rodriguez when she appeared before the Supreme Court more than 20 years ago. My concerns are that the forces who are opposed to aid in dying have rallied their forces and are attempting to water down or narrow the findings that came out in Carter and the special joint committee. I see that as a detriment to the issue of assisted dying for Canadians.
I recently attended a forum in Vancouver that was purported to be a meeting of the Faculty of Medicine to give the our views about physician-assisted dying. I initially wasn't invited; I had to get myself invited. I was one voice amongst a group of others. I think the deck was pretty much stacked so that the minister would hear only from those who were opposed to physician-assisted dying, including palliative care doctors, who are on record as opposing physician-assisted dying, doctors from Catholic hospitals, and witnesses who had appeared before Carter to testify for the government and who had their testimonies rejected by the court.
This group of people I think collectively were recommending that we go further, saying that we can't let two doctors decide on these issues, but that we must have a judicial hearing for each and every case. I've had experience with two judicial hearings in western Canada, one of which took place yesterday, in which the suffering elderly patient, who has a “grievous and irremediable” illness, was in front of a judge asking to have assistance in dying. Suddenly the Attorneys General of Canada, Alberta, and British Columbia appeared to oppose them. This puts a huge burden on individuals who are having to pay for a lawyer and are having cases adjourned. I see this as being a real burden of suffering if we go down that road, so I'm certainly speaking against that kind of amendment.
The three issues that resonate with me are the issues of dementia, mental illness, and, to a lesser extent, individuals younger than age 18. The reason for individuals younger than 18 being one of the issues is a relatively minor problem, because the number of individuals is going to be relatively small. Similarly, in regard to mental illness, the numbers of individuals who have grievous and irremediable mental illness will be very small in number. We know that from other countries.
The issue that really resonates with me is the issue of dementia. I speak on a very personal level, because I witnessed my mother-in-law and father die from dementia. This is an ugly, debilitating illness. In the latter stages of dementia, we end up being incontinent of urine and feces, being speechless, and having no idea of who we are or who our families are. This is a state that can go on for months, if not years. I for one do not want to live like that, and I cannot imagine that most Canadians do.
We already have advance directives in legal force, such that we can have do-not-resuscitate orders, and we urgently need the ability to attach advance directives to the ability to have aid in dying at a time when we may not be competent. There's going to be a large number of Canadians who are negatively impacted by dementia over the next few years.
My concern is that if we study these three issues over the next five years, a certain number of Canadians are going to suffer needlessly. We do not need to do that. Personally, I don't see that there's much need for additional study with the issue of dementia at all. I would urge you to take up my recommendations and move amendments to get us back to the joint special committee's recommendations, or at least back to the language of Carter.
Thank you. I think I'll conclude my comments there.
Thank you very much, and good evening, honourable members.
My name is André Schutten. I'm a lawyer with ARPA Canada. We were intervenors in the Carter case, and we have analyzed the various legislative and policy proposals that have been published since that decision was released in February by the Supreme Court.
I want to emphasize at the beginning that Parliament is not forced to pass a law legalizing euthanasia or assisted suicide. If Parliament passes such a law, it does so willingly and cannot wash its hands simply because the Supreme Court made you do it.
In fact, the Supreme Court made an error, and Parliament has a moral duty to correct that mistake. Parliament has a legal option—and I'm not talking about the notwithstanding clause—to fully protect all human life by prohibiting euthanasia and assisted suicide. I would be happy to discuss during the question period how that can done as an amendment to Bill .
If Parliament insists on choosing to legalize assisted suicide and euthanasia, it will put the lives of vulnerable people at unacceptable risk, thus violating their constitutional right to equal protection of the law. The Supreme Court Law Review just published an article that I wrote making that very argument. Again, during the question period, I'd be happy to take questions on how Bill and the Carter decision actually violate section 15 constitutional rights of men like James and Pieter, who are sitting beside me.
Now I'm a healthy, able-bodied Canadian, as are all of you, including the doctor you just heard from, but I don't think we fully appreciate the disadvantage that Bill puts on some of our fellow Canadians who courageously face many obstacles that we will never face. Instead of me trying to convince you of those types of things, I've asked two such Canadians to share their perspectives directly with you, to comment on how Bill C-14 affects them, and then to share changes that they believe are necessary in order to make them feel a little more secure living in a post-Carter Canada.
I'm going to turn it over to James first, and then to Pieter.
Hi. I am James Schutten. Thanks for the opportunity to speak to you about this important issue.
When I was two years old, I was diagnosed with spinal muscular atrophy, which has left me with serious physical disabilities. I require someone to set up my feeding tube, suction my trach, turn me over in bed, take me to the bathroom, and scratch my head. I am not telling you this to make you feel sorry for me. I don't feel sorry for myself. However, you need to know that these professionals and family members need to care about my life and whether I live or die.
This is why I needed to talk to you about your draft law legalizing doctor-assisted death, and how that law will affect me and others like me.
I've gone to the hospital because of illness, and medical staff questioned whether extreme measures were worth it. This makes me very nervous, because I feel as if I am not worth the trouble. Thankfully, my family has my back to speak with the doctors on my behalf. If I have anxiety now, how much more if Bill comes into effect?
What if society started from the perspective that I do have value? What if people didn't view me as a burden for others to carry? I am one of those people who the Supreme Court of Canada thinks should have this right to doctor-assisted death. What if, instead, I had the right to palliative care or resources to help me continue to be a productive member of society?
I believe others like me feel the same way, but this right to die makes me feel as if society thinks I should choose to die.
Therefore, I urge you to add to proposed subsection 241.2(3) the requirement that palliative care is meaningfully made available to the patient.
Look past my wheelchair, and see that I am an asset in my community. I volunteer at a nursing home a few days a week and help out at an elementary school, all of which I really enjoy.
I don't believe that anyone has the right to choose exactly when to die. God alone decides, and he does not make mistakes. He has a purpose for everything. My faith and family add value to my life. Instead of investing money into a bill which normalizes the choice of death, our country should invest time and money into giving people with illness, disabilities, and old age a will to live.
I have one last thing to say. I want you to know that I am not a public speaker. I was very nervous to come here, but I feel that this goes far beyond just me and my insecurities and limitations. I need to speak up because this is so important. Please remember me when you make your decision.
I thank you all for allowing me to come here and for the privilege of speaking to you, members of the committee.
I'd like to echo James's concerns and add my own two cents. I do have concerns with Bill , including it's lack of linguistic precision.
Sadly, I feel the bill is dangerously dependent on euphemisms. Throughout, “medically assisted dying” is used to describe what is, in reality, physician-assisted suicide. This is problematic in the way that it undercuts palliative care. After all, what is palliative care if it is not medically assisted dying? I urge you to please use accurate terminology so that termination of life is not confused with palliative medicine.
Furthermore, the proposed law necessitates that, in order for someone to assist an individual with suicide a medical professional must be of the opinion that the person meets all the criteria, including the opinion that they have a grievous medical condition. Since the term “grievous” is vague, an attempt is made to make that definition more specific in proposed subsection 241.2(2).
However, even here, Bill runs into problems. How is one to define “intolerable suffering” as opposed to “tolerable suffering”? The reality is that intolerable suffering is relative. Suffering is modified by many diverse factors. Therapies and treatments are readily available to address all of these factors. Not only is unendurable suffering relative, but it is too much to ask a physician to judge whether or not someone is indeed experiencing intolerable suffering.
In order to ensure that physicians don't approve euthanasia for vulnerable persons like James and myself in moments of weakness, specifics must be added to clause 3. This means including the need for reasonable proof, rather than mere opinion, in proposed paragraph 241.2(3)(a), and the addition of a specific prognosis in proposed paragraph 241.2(2)(d) to replace the phrase “natural death has become reasonably foreseeable”.
Proposed subsection 241(5) provides an exemption for aiding an individual to self-administer a substance for the purpose of ending their life. In an attempt to respect autonomy, the key checks and balances put in place elsewhere in the bill are hereby bypassed. We cannot just assume that people will be protected by the safeguards outlined in proposed subsection 241.2(3).
Most importantly, there must be oversight to ensure that patients are given the opportunity to revoke the request as outlined in proposed paragraph 241.2(3)(h). We must be careful that the appropriate balance mentioned in the preamble to the bill is not skewed too far towards autonomy, at the expense of vulnerable persons in need of protection, such as James and me.
The only true protection of the sanctity of life is a ban on euthanasia, but barring that, these recommendations will improve the situation for the disabled and ill.
Thank you, Mr. Chairman and members of the committee. My name is Hugh Scher and I'm the lawyer for the EPC. I'm a constitutional lawyer with over 20 years experience. I was counsel before the Supreme Court of Canada in the Carter v. Canada decision, and I've been engaged in almost all end-of-life cases, including Rodriguez v. British Columbia, R. v. Latimer, and Cuthbertson v. Rasouli, at the Supreme Court and other levels of court.
EPC seeks to raise four fundamental points for the attention of the committee. First, we seek to address the concern about blanket immunity relative to any person who participates in acts of assisted suicide or euthanasia under the bill. Such examples would include proposed subsections 241(3) and 241(5) which state that no person is subject to “an offence” if they assist with, or otherwise engage in, such actions pursuant to the things...provided they are doing so in a manner that does not expressly violate...but again, the language is not clear. There is no such meaningful blanket immunity in any jurisdiction in the world where euthanasia or assisted suicide are legalized. I would simply put out there that the blanket immunity that's applied for those who assist or otherwise engage in this conduct is not something that is found around the world in those jurisdictions where it is in place. Ms. Hasbrouck has other suggestions in that regard.
The second point I would address is the concern related to the limited safeguards that are contained in the bill, and the fact that they are, in many respects, woefully inadequate in terms of addressing the kinds of concerns other witnesses have here testified to today. The limitations are extremely narrow in scope. They are the same kinds of limitations that would apply in the context of a health care decision-making process, such as voluntariness, consent, capacity, and then the need for a doctor or two to sign off. These are not adequate safeguards and they will become, and have become, illusory in those jurisdictions that have them in place, in Belgium for example.
In the Flanders region of Belgium, based on the death certificate studies that were conducted, we know that in 32% of cases of euthanasia, people were killed without request. They were killed without consent, despite a legal requirement for those things to occur. In 47.1% of those cases, not one of the doctors who engaged in these actions, contrary to the law, was prosecuted. These statistics are found in the documentation that was before the Supreme Court of Canada, and indeed, in the Supreme Court's reasons themselves.
The third point I would address is the question of oversight. I would submit to you that, contrary to what you heard earlier about the concerns around legal oversight and adjudicative oversight, the reality is that what the Supreme Court of Canada has now put in place in terms of judicial oversight is what is required in order to ensure a level of independent assessment and adjudication by a third neutral party, to determine that the criteria, whatever they may be, established by the Parliament of Canada are, in fact, addressed and adhered to.
We have serious concern about the notion of simply leaving these oversight measures in the hands of the doctors and nurses who are themselves engaging in and carrying out the acts that are the subject of the legislation. What the Supreme Court of Canada has put in place, by way of an interim measure, is to provide for a level of judicial oversight. That seems to have been working fairly well and relatively unobtrusively. I would urge this committee to seriously consider implementation and continuation of the measure that the Supreme Court of Canada has itself put in place in order to ensure a level of independent oversight that the Supreme Court itself felt was appropriate to the circumstances.
The fourth point I would address is a question around fraud and transparency. The bill, to some extent, addresses this, but we know in other jurisdictions, in the province of Quebec for example, that death certificates are effectively falsified by doctors not to reflect the actual cause of death as being euthanasia, but rather relating back to the underlying illness of the person. It is impossible to have reasonable and meaningful transparency and oversight on a system predicated and based upon a fraud. I urge this committee to bear that in mind, and to implement measures that will ensure that that kind of fraud and transparency are addressed expressly in the context of the legislation itself.
The failure to do that makes it almost impossible to monitor and oversee these practices, both on a present level and on a go-forward basis, in which case it becomes impossible to meaningfully assess and to actually in fact address the kinds of abuses that may well be a concern and may well actually take place. How can you do so based on a system that doesn't allow for proper, effective, adjudicative oversight?
I'm going to turn it over to Ms. Hasbrouck to continue and to address you further in questions.
Thank you very much, Hugh.
My name is Amy Hasbrouck, and I'm the director of Toujours Vivant—Not Dead Yet, and I'm also here in my capacity as vice-president of the Euthanasia Prevention Coalition. I've been a disability rights activist for over 30 years, and I've worked on this issue, opposing euthanasia and assisted suicide, for 20 years. I was a lawyer in the United States and I have worked in health law and mental health law as well.
My major concern about this law is that it does not provide access to palliative care, while it provides access to death on demand. Palliative care is what people need to answer the question, “Why am I suffering?” Most surveys in which people are asked if they want palliative care, people say yes, but people are often confusing the concepts of palliative care and medical aid in dying. When people are asking for death, they're asking for help. Not providing adequate palliative care—which is the case in this country, where only about 30% of people have access to palliative care—means that people are dying needlessly. We should put the horse before the cart and put the palliative care before the death.
I have submitted proposed amendments, in English and in French, that would address that. You can read them at your leisure.
The second concern I have is that in the Carter case, the court expressed very specific concern about vulnerable persons, and not wanting vulnerable persons who might be induced to commit suicide in a time of weakness to be victimized by this law. Yet, there's no provision in this statute, other than some nice words in the preamble, to protect people who are vulnerable. That is the subject of some other amendments that I have included in my submission.
Third, the safeguard section includes several subjective criteria against which physicians and nurses would determine whether somebody was eligible for assisted suicide. That kind of subjective determination might not be such a problem but for the fact that most medical professionals view a disabled person's quality of life as being lower than a disabled person does. This kind of disability discrimination is rampant in the health care system, and when someone's quality of life is underestimated, the idea comes straight to mind that the person might be better off dead. I don't know a disabled person, myself included, who's never been told that they'd be better off dead. That kind of thinking is really what's at the bottom of this law, that non-disabled people fear so much being disabled, fear so much, as Mr. Smith said, being incontinent, that they would rather be dead.
These are the kinds of things we are battling against, using small amendments to try to rectify the language in the face of this law, a law that is going to go into effect, and that is going to present some worse depredations. Our concern and our hope is that some of the priorities could be changed so that palliative care and vulnerability assessments become part of the law and that judicial oversight provides more structured and more effective guardianship over the lives of people with disabilities who are subject to these laws.
The first thing I would note is that the Supreme Court of Canada itself has implemented this regime as a desirable regime in terms of assuring effective oversight. That's number one.
To respond to your points, in terms of access, I would suggest that if there is an expedited application process to the Superior Court of the province, that would then allow an expedited mechanism to proceed. You'd have a panel of judges within the court who would build up a level of expertise over time in addressing the issue. There would be a streamlined process. It would largely be dealt with based upon affidavit evidence from experts, from clinicians, and from family members and the individual. To the extent that those can be dealt with without the need for expressed oral argument, that could be addressed. Or, there are other ways it could be dealt with, through video conferencing or otherwise in appropriate cases. Where there's a challenge, then it may well be appropriate and necessary to have testimony called in order to assess.
The whole point of oversight is not simply to rubber-stamp these kinds of determinations, but rather to ensure an effective process—not an obstructive process, but an effective process—to ensure that the criteria set out either by the Supreme Court or by this Parliament are in fact respected and adhered to.
I think that can readily be done. The Supreme Court of Canada certainly felt it could be done. They've done it. I think for Parliament to simply implement what the Supreme Court has indicated would be to ensure the level of effective oversight that the court had in mind, number one; and, number two, enable the process that is now in place.
I'll note that in British Columbia, Alberta, and Ontario, there are specific guidelines that have been established by the courts that provide for processes in terms of addressing these applications. I would also note, on a different level, that in Ontario, for example, we have the Consent and Capacity Board.
The Consent and Capacity Board has very tight timelines. It has counsel appointed for the individuals in question where there's a consent to treatment question in dispute. The doctors attend before a tribunal member, and the witnesses attend, and these are dealt with on the kinds of determinations that Mr. Smith was talking about in the health care setting.
Now let me be clear. What we're talking about here, in my respectful view, is not health care. The intentional killing of patients by doctors is not and should not be considered to be health care. What we are talking about is a carved-out exception to the Criminal Code of Canada, as endorsed by the Supreme Court of Canada. We're not even talking about a constitutional right to die. That's not what the Supreme Court said. We're not even talking about a constitutional right to euthanasia or assisted suicide. That's not what the Supreme Court said.
What we need to do is twofold. Number one, we need to ensure an expedited process to allow for effective judicial oversight, modelled perhaps off the same model as the Consent and Capacity Board model under the Health Care Consent Act in Ontario. Number two, we need to differentiate and to carve out, if you will, the federal jurisdiction from the provincial jurisdiction.
My concern, in part, with this bill is that it's blurring the lines between federal jurisdiction over criminal law and provincial jurisdiction over health care. Care must be taken to ensure and safeguard that the acts of euthanasia and assisted suicide contemplated by this bill are deemed to be exceptions to the Criminal Code of Canada as reflected by this bill, and in fact are separated out from other health care measures that are otherwise the responsibility and purview of the provinces.
Well, I don't know what those words mean. When I spoke to the minister last week on this, I said that it was reasonably foreseeable that I would be back in my office within an hour, and it was also reasonably foreseeable that I would be dead in 50 years. That's a huge time frame, and I don't think doctors are going to be comfortable with seeing something as “reasonably foreseeable”. I don't like that language, and I think we should take that out of the bill.
One of the senses I'm getting from this whole hearing, though, is that many of the arguments that are being put before the committee are the very same arguments that were put before the courts in British Columbia and Canada, and the arguments were found wanting. Having lost the battle, if you like, with Carter, the case is trying to be retried here in front of a parliamentary committee, and I simply don't like that. I think we already have had a judicial body give due thought and consideration to these matters, and it has passed a 9-0 decision, and now we have people trying to undo that and to place a huge burden on the suffering Canadians who are going to have to go to judicial reviews at great cost to themselves and families, with huge time delays.
As I mentioned, just yesterday the Attorney General of British Columbia intervened, and a woman who was seeking death now has to wait for a court adjournment, an open-ended court adjournment. This is not a good thing to happen when you're at the end of your life and suffering grievously and irremediably and you have to fight the Attorney General and the Government of British Columbia and have an adjournment in your case. I think this is cruel and unusual punishment for individuals.
I think we need to have an easy way for Canadians to express their autonomous wishes to have a timely and painless death, because, after all, suicide is legal in this country. We're not talking about an illegal act here. We're talking about giving Canadians autonomy over ending their lives at a time and a choosing that they want.
I would be hesitant to overgeneralize in terms of the community as a whole. I have been involved in these issues for 25 years on behalf of the disability community, which is a very diverse community including members who are on all sides of this debate. I spent seven years as the chair of human rights with the Council of Canadians with Disabilities, which is Canada's largest disability rights advocacy organization. I have been engaged in this debate from all sides and all angles.
I don't think it is fair to say simply that the perspectives of the people you are hearing here are coming from one monolithic viewpoint. What I would say is that there is a generally held consensus about a lack of effective oversight and sufficiently precise measures to give effect to what the Supreme Court of Canada has said.
I am not trying to relitigate what the Supreme Court of Canada said. I may try to clarify it. For example, when I say that it didn't commit a right to die—it didn't commit a right to euthanasia, and it didn't commit a right to assisted suicide—that is the reality. People may try to advocate other viewpoints, but the reality of what the court did and had the power to do was not that. What it did was strike down as unconstitutional a Criminal Code prohibition against either culpable homicide or assisted suicide. That is what it did. That was its jurisdiction. Then it went on to address various other points. In terms of that issue of blanket immunity, we have talked about it in that context.
The Supreme Court of Canada made this point clearly, and I urge it on this issue and also on the question of advance directives. Despite what I have heard here today, the Supreme Court of Canada did address the question of advance directives clearly. They said they were concerned that there was a need for actual consent at the time of the act and, for that reason, they were not prepared to engage in and allow for advance directives as part of their ruling.
It is not that they didn't address it. On the contrary, they addressed it squarely, and they said that there needs to be clear voluntary consent at the time of the act in order to allow for this measure to proceed. In that context, that applies both to the question of advance directives and to the issue of immunity that I was speaking about earlier. How do you determine that there is actually clear, voluntary, uncoerced consent at the time of the act when you are allowing third parties effective immunity to engage in providing people with medications, often weeks, hours, or months after the time of a prescription, to effectively end their lives? You can't. It is entirely impossible to enforce.
The way the system works now, under the existing ruling of the Supreme Court of Canada—which is what I am urging continue—is that there is evidence brought forward, which would consist of information from physicians and from the individuals, stating what their wishes and intentions are, allowing the physician to determine the nature of their medical condition and the extent of it, the fact that they have informed what the nature of the diagnosis, prognosis, and other elements of the condition are, and the fact that all aspects of treatment have been discussed and reviewed with the patient, and the opportunity has been provided to allow for those things.... The way the existing bill reads, none of those things are effectively addressed.
All we are trying to do here, in this bill, is to effectively have two doctors say, “We have conferred, and we agree that the person has consented to this act.” Two witnesses have signed to that effect, and that's the end of it. There is no requirement that says that.... In fact, doctors have taken the steps to ensure that all the required steps of voluntariness, consent, proper diagnosis, and a level of understanding of the options for the patient, in terms of treatment and otherwise, are made known and available to the patient, and to ensure that the requirements of both the Supreme Court and what I would urge this body to implement are in fact adhered to and met.
The way it would work is that there would be, presumably, affidavit evidence from the individual and affidavit evidence from the doctors, including medical notes and records, which would be submitted to a court to determine that all the requirements that ought to have been met, of the Supreme Court's ruling and of what Parliament may enact, have in fact occurred, and that it is not simply a rubber-stamping exercise.
We're going to reconvene with the next panel of witnesses. It's a pleasure to have each and every one of you with us today.
We are joined by Steven Fletcher, a former member of Parliament and a new member of the Legislature of Manitoba. Congratulations on your election.
We are joined by the Centre for Israel and Jewish Affairs, represented by Richard Marceau, a former member of Parliament, who is the general counsel and senior political adviser. Welcome, Mr. Marceau.
We're also joined by the Canadian Association for Community Living, Mr. Michael Bach, who is the executive vice-president. Welcome, Mr. Bach.
Each of you has eight minutes, then we're going to move to questions. As all of you know, we're studying Bill , so we would very much appreciate if you would comment on the bill itself and the proposed amendments to the bill, and not general comments you may have made to the special committee.
That being said, Mr. Fletcher, the floor is yours.
Okay, thank you, Mr. Chairperson.
Thank you everyone for the opportunity to comment on .
My comments are going to be brief and focused on the bill. I've already spoken in front of the joint committee, and I initiated some private members' bills in the previous Parliament on this issue. I've also written a book called Master of My Fate on the parliamentary process.
I would like to first of all commend everyone involved. This is a difficult issue. There are some very good things in the bill. I found in many ways that it mirrored the private members' bills that I had introduced. This includes the provisions around making sure that people who may have a vested interest in the demise of an individual are not involved in the decision-making process. I encourage you to keep that in the bill. It's not an amendment; it's a thumbs-up for what is there.
I would also say that on the age of consent at 18, the bill is probably realistic at this time.
I think, though, that we need to collect empirical data over the next few years to find out where the demands and the needs are, and why people would request a physician-assisted death, by having a mandated parliamentary report that is public, with empirical data. It could perhaps be funded through the Canadian Institutes of Health Research. In order to make good public policy, you need good empirical data, especially on such a difficult issue as this.
Now, on the amendments, the Supreme Court was very clear that sections 241 and 14 of the Criminal Code unjustifiably infringe on section 7 of the charter and are of no force or effect at this time. Moreover, the Supreme Court made it very clear that the prohibition for physician-assisted death for a competent person “who...clearly consents to the termination of life and...has a grievous and irremediable medical condition (including an illness, disease, or disability) that causes enduring suffering that it is intolerable to that individual in circumstances” that they find themselves in....
The bill clearly is not consistent with the Supreme Court decision on the issue of terminal illness and that you have to be on a trajectory of end of life in order to take advantage of one's charter rights. I can understand, politically, why this was done, but it is quite frankly something that will go to the courts, and it will be changed to what the Supreme Court says. You cannot deny someone their charter rights because they happen to have a disability that may last 40 years, or an illness that goes on forever.
There are unfortunately many such situations that exist, such as ALS. There's also MS or stroke victims. There are many permutations of illness, and by saying that they have to be on a death spiral essentially denies them their charter rights.
The other comment I would have is on proposed paragraph 241(b). It's not clear to me that someone would be made aware of all their charter rights, including physician-assisted death. It seems to say that, if you raise it with someone, you are in deep trouble. I think people would like to know the entire range of options is available to them, including physician-assisted death in some cases. It seems to forbid medical practitioners from expressing that—or anyone else for that matter.
Regarding advance consent, I think this should be part of the mandate of whatever you decide to do for the future. It may be a bridge too far this time around. We've come a long way in a couple of years, but I can understand the challenges with that. But again, if someone has dementia or something happens to them in the future, why can they not state what their preferences are before they lose their cognitive ability? There's nothing in the Supreme Court decision that would prevent that.
Finally, there's been a lot of drama around the Supreme Court decision in the last year, and people are trying to weave their way through a difficult legislative process. I very much get the challenges that you have as MPs, but at the end of the day, it's all going to come back to what the Supreme Court has said.
Committee, without the amendments, particularly in proposed section 241, you're going to have to decide if you are going to force people who are disabled or have a disability or illness to go to the Supreme Court to exercise their charter rights or if you accept what is inevitable and just replace the wording with what the Supreme Court said in the first place.
I'd like to thank everyone for the opportunity to be here today. Of course we always have to realize that offering more resources for people is important, but sometimes all the resources in the world don't make a difference or can't make a difference, and people are suffering every day. We need to be empathetic to those people.
Thank you very much.
Some of our members support medical assistance in dying, focusing on the fate of people who have an incurable or debilitating illness for which there is no remedy. Others oppose it, based on traditional religious grounds or thinking that it would precipitate the practice of euthanasia.
Although there are differences of opinion, a broad consensus exists within our community on the fact that, in response to the decision of the Supreme Court in the Carter case, important measures must be taken: to protect health care providers who object to medical assistance in dying for reasons of conscience; to ensure that eligibility for medical assistance in dying is sufficiently regulated to protect vulnerable individuals; and to provide genuine access to quality palliative care.
I would like to start with the question of conscientious objection. Many health care professionals oppose medical assistance in dying based on their deep professional, religious or moral convictions.
Unfortunately, Bill is silent at present on the question of the freedom of conscience of the doctors, nurses and pharmacists who could be asked to provide medical assistance in dying. Some health care providers believe that merely recommending medical assistance in dying to a patient is an unacceptable act.
We are encouraged by the fact that Bill C-14 does not force doctors to refer patients directly. If that had been the case, Canada would have been the only country to impose that requirement, which probably could not comply with the Supreme Court's direction to strike a balance between doctors' and patients' rights.
However, I would stress that any accommodation concerning the approach taken by health care professionals should not limit patients' access to medical assistance in dying.
Several models have been proposed to balance these rights. For example, the Canadian Medical Association has proposed a separate central information, counselling, and referral service to which objecting physicians could direct patients seeking physician-hastened death.
Dr. Hershl Berman, a specialist in internal medicine and palliative medicine at the Temmy Latner Centre for Palliative Care in Toronto and an associate professor in the Faculty of Medicine at the University of Toronto, recently proposed another model in The Hill Times. He wrote:
||Rather than actively referring patients, all physicians should be required to report any request for assisted death to the provincial Ministry of Health or a regulatory body. Physicians would be required to register if they are willing and qualified to provide MAID, and indicate how many additional patients they are able to take on per year. If the report is from a doctor willing to provide the service, he or she would receive confirmation. If not, the registry would connect the patient with a nearby practitioner.
“MAID” stands for medical assistance in dying.
Dr. Berman noted this as well:
| In addition to respecting the beliefs and values of physicians who object to MAID, this process has an additional benefit. Many physicians, especially specialists, have a limited network of colleagues to whom they are accustomed to referring. In isolation, particularly in under-serviced areas, any doctor may have difficulty finding a colleague willing to accept the patient. If the process is managed centrally, a registry can ensure more effective and timely access for patients who wish to hasten their own death.
I would now like to talk about eligibility. We sympathize with patients who have not reached the age of majority, who have a health problem and would like to have recourse to medical assistance in dying. We also have to consider the serious difficulties that would face both the minors who would make such a serious decision themselves and the parents who would make the decision on behalf of their child.
Considering the finality of medical assistance in dying, we believe in the need to take a cautious approach to the criteria relating to consent. We believe the government has struck a fair balance in Bill by limiting access to medical assistance in dying to competent adults aged 18 and over. This approach is consistent with the laws on medical assistance in dying in Quebec and other jurisdictions in North America. We believe, as Bill C-14 provides, that if medical assistance in dying is allowed, it should be limited to adult patients on the brink of natural death.
We acknowledge those within our community who would prefer that medical assistance in dying be available more broadly, along the lines of the situation in some European countries, and we empathize with their motivations. However, these concerns appear to be beyond the scope of what the Supreme Court intended in its decision, which stated:
||...high-profile cases of assistance in dying in Belgium...would not fall within the parameters suggested in these reasons, such as euthanasia for minors or persons with psychiatric disorders or minor medical conditions.
Many members of our community believe that Canadians should be able to give consent to medical assistance in dying before suffering physical or mental deterioration, and give advance instructions in the event they were to become incapable of acting. Some people consider this to be a fundamental component of any effective scheme. Others, however, have expressed concerns.
After diagnosis, a patient might justifiably not want to continue to live during the terminal phase of their illness. However, that does not necessarily mean that they will continue to want medical assistance in dying when they become eligible, when they are no longer competent to revoke their consent. If the committee chooses to amend Bill to include advance directives, we believe they should adhere to the same rigorous guarantees defined in the bill to ensure informed consent. Patients will have to meet those requirements when they are capable of giving informed consent, and their directive will be respected once they meet the eligibility criteria.
In conclusion, I would like to discuss a matter on which there is broad consensus: the need to provide high quality, universally available palliative care as an end of life option. Medical assistance in dying cannot be a substitute for palliative care, home care or support for patients in the terminal phase and their caregivers. It is essential that medical assistance in dying not be the only option or the default option available to Canadian patients.
Thank you, Mr. Chair. I will be pleased to answer questions in the language of your choice.
Thank you, and good evening honourable Chair and members of the committee.
On behalf of our association, I'm pleased to present our brief outlining specific proposed amendments to Bill a brief we title “Medical Assistance in Dying: A Private Request, a Public Act”.
Let me begin why we chose this title for our brief. Our membership has been struck by the reactions to our proposals and efforts to advance robust safeguards for vulnerable persons, often with the following comments. “This is someone's private decision”. “What business does the state have being involved?” “It's a matter of choice; why should that choice be questioned?” “The focus has to be on enabling people to get what they need, so they can die in dignity”. We appreciate the depth of the concern, the first-hand experience, the desperation, and the frustration that motivate these kinds of reactions to proposals for robust safeguards.
One of the main difficulties in the debate is that it is actually not as straightforward as some commentators seem to suggest, to design a public service to respond to people's request for what Bill calls medical aid in dying. After all, we are talking about a public service designed to end people's lives, not to provide palliative care or other supports. The has made clear that's for future conversation and consultation with the provinces and territories.
We're now engaged in building a new public service in Canada designed to make people dead. I put this starkly, not to be provocative but so that we can bring as much clarity as possible to what it is that we are actually doing with eyes wide open, about what is at stake.
The Supreme Court of Canada, in paragraph 2 of the Carter decision, made the stakes clear. On the one hand stands the autonomy and dignity of a competent adult, who seeks death as a response to a grievous and irremediable medical condition. On the other stands the sanctity of life and the need to protect the vulnerable. It goes on to say people who are vulnerable to being induced to commit suicide.
We think there are two main policy questions to answer in order to deliver on these policy goals. Who is the service intended for, and how can we best ensure that delivering the new public service will only be to those who are truly autonomous and not to those who are being induced to die by suicide?
The first question, who is the service intended for? We fully support the definition of eligible persons for this service as laid out in Bill We concur with the conclusions of constitutional law expert, Professor Dianne Pothier, who wrote, in a piece published in Policy Options just last week, that the Supreme Court's silence on the particulars of the definition of grievous and irremediable should not be taken to tie Parliament's hands. Indeed, the court was very clear that it was up to Parliament to define this term and the parameters of the system.
As Professor Pothier notes, the trial judge actually defined the term and she did so quite clearly. The Supreme Court neither rejected the definition nor added to it. The trial judge defined the term to include only those conditions that left the person in an advanced state of weakening capacities, with no chance of improvement, and specifically excluded those whose source of intolerable suffering was psychosocial in nature. In granting the constitutional exemption to Ms. Taylor, the criterium was that she would be terminally ill and near death, and there was no hope of her recovery.
Although the Supreme Court of Canada did not define grievous and irremediable, the fact that it adopted the trial judge's terminology, without comment, offers a strong inference that it found the trial decision definition and the criteria valid, otherwise, the court would likely have altered the criteria or rejected the terminology. We also support, very clearly and for reasons the Professor Pothier has laid out, the inclusion of a criteria of reasonably foreseeable natural death.
Second, and we can get into a discussion on that later, how can we best ensure that we're delivering this new public service only to those who are truly autonomous and not to those who are vulnerable to being induced to die by suicide?
A main challenge in designing this service is to identify and respond to people who may be induced to use the new system to die. One of the challenges is that it's not a straightforward exercise to identify who, in fact, is vulnerable to being induced.
What do we mean by being induced to die by suicide in such a system? There's a large body of clinical research on inducement to suicide, and recent evidence and case examples from Oregon, the Netherlands, and Belgium. We've recently undertaken a review of this research, which points to five main ways in which people can be induced.
First, there can be distorted or disordered insight into one's condition and options available to a person as a result of the mental health issue.
Second, there can be hopelessness arising from self-stigma associated with negative cultural messages and stereotypes about one's condition.
Third, there can be direct coercion, and there are many examples in the Oregon and Belgium-Netherlands systems of direct coercion. One that we've shared is of a caregiver in Oregon who said to her husband, you either use the system to die or you go into long-term care. He didn't want to go into long-term care, so he chose the system to die. Given that 40% of elderly persons in long-term care in Canada are either clinically depressed or show symptoms of clinical depression this should be a real concern for us, and given also the lack of family supports.
A fourth form of inducement is through what the psychiatric literature calls the psychodynamics of the relationship with health care professionals, where physicians may feel a sense of guilt from not being able to heal a person and a person comes to feel like a lost cause. This is called in psychiatric terms transference and counter-transference.
A survey of psychiatrists involved in consulting on request for physician-assisted death in the Netherlands indicated that such dynamics influenced 25% of the requests in which they had provided psychiatric consultation and 19% of cases they consulted on physician-assisted death went ahead to be authorized by physicians, even though the psychiatrist had advised that issues of transference and counter-transference appeared to be influencing the decision.
A fifth way of people being induced is because of a lack of access to needed support or information about what options might be available, meaning effectively that people are not making informed decisions.
Our proposed amendments to address these concerns are laid out in our brief and include, in summary, an expansion of the preamble to include a study on independent prior review. We believe that a system for prior review is essential to guard against the very real risks and complex nature of the reality of inducement that is pervasive in the systems that exist and to ensure that the legal criteria Carter laid out are met.
Second is a clearer standard for informed consent. The bill only references external pressure. The Supreme Court was clear that people who were induced to die by suicide needed to be safeguarded. The standard should include reference to inducement, undue influence, and coercion.
As well, there are only five provinces and territories that actually have statutory standards of informed consent across the country, and colleges also have varying guidelines.
A proposed additional safeguard is that before medical assistance is provided, the medical practitioner or nurse practitioner must confirm that a qualified clinician has provided the person with a palliative care consultation, outlining the full range of treatment, technology, and support options and provided written confirmation that the person had the capacity to refuse those options.
Fourth, we believe that until further study is done, either the current system of superior court prior review should stay in place or proposals advanced for putting a tribunal system in place should be incorporated into the bill.
Here are a couple of final ones. The bill provides that the Minister of may make regulations related to information to be gathered. We believe that should be amended to say the minister must make those regulations and those regulations should come into force on the day the law comes into force, so that we can be assured that information is being gathered about requests, the socio-demographic information, the reasons people are refusing options, and the reasons they are requesting this service.
Finally, we believe that the bill should include a requirement that the ministers of and table a report in Parliament on an annual basis based on analysis of the information that is collected under the regulations.
Mr. Fletcher, with all due respect to the other witnesses and meaning them no offence, I came here this evening, after a very busy day, to be sure to hear you because, for one thing, you are inspiring. Some people claim to be well-wishers and do-gooders when it comes to vulnerable individuals. By interfering with their self-determination and their autonomy, they imagine themselves, in all their paternalism, to be doing good, when we know very well that this is not the case.
Yesterday, the Barreau du Québec said exactly what you have said this evening. I don't know whether you find it reassuring, but there are others who share your opinion of Bill . That is simply a comment, an expression of appreciation. I also share your reading, because we are talking at all times about vulnerable individuals. However, the Supreme Court has specifically taken a position under section 7 of the Canadian Charter of Rights and Freedoms to protect vulnerable individuals, in particular when it says that a total ban, as is the case at present, infringes not only a person's security and freedom but also their right to life, in that it could lead to the person taking their life prematurely, when, in fact, individuals with a degenerative disease, for example, are not suicidal. They want to live as long as possible, until the time comes, at the point where their condition appears to be completely unbearable, when they are no longer able to end their own life. Those people are the sole judges of their condition. On that point, your testimony seems very eloquent.
Mr. Marceau, you are familiar with the law in Quebec. I think there is some confusion in Bill . What do you think about the Quebec law, on which there was consensus after six years of discussion, and that the National Assembly passed by a vote of 94 to 22? What do you think about Quebec's act respecting end-of-life care?
In terms of the process itself, everyone agrees that it was remarkable. The people in civil society were listened to and heard. I would particularly note the remarkable work done by Véronique Hivon, whom you met with yesterday, I think. I also know her personally.
Quebec has been exemplary in its consideration of this issue. It also had the time to come to a position that was quite broadly shared. You said that 94 out of 125 members of the National Assembly were in favour of that position, as compared to only 22 who opposed it.
I know that you are very familiar with politics in the National Assembly. It is very difficult to manage to achieve that level of consensus on an issue like this. It is quite remarkable.
The work in front of you as federal parliamentarians is very difficult, because you have very limited time. You are still here and it is nearly 8:30 p.m. You have spent the day working on this issue. I am familiar with the work done by the justice committee, and Bill is quite complex. It takes a lot of concentration, and that is a demanding task.
Personally, I am an admirer of the Quebec law on this subject. Knowing the institution where you sit, and a number of you around this table, I am sure that the work you will do will also be serious, limited though the time is. I am sure you would have liked to have more time, but that is unfortunately not the case. I am sure that the work you are doing and will be doing will result in a position that will both comply with the decision of the Supreme Court of Canada—we have the rule of law in Canada and we must respect that Court's decision—and, I hope, meet the aspirations of the largest possible number of people.
Thank you very much, gentlemen, for your testimony today and for sharing your expertise on the matter. It's very much appreciated.
I have some initial questions for you, Mr. Bach, with respect to some of the safeguards you propose in your brief. The administration of dying by physicians and medical professionals is a very sensitive topic. We need to be sure that where there is consent, as per the Supreme Court decision, people be allowed to go through this process. At the same time, there's that balance we have to strike for vulnerable persons. I think that's what you're trying to address in your safeguards as you list them here.
You list your safeguards in section C. You also recommend prior review by a superior court. I'm just wondering if you've thought about how long the whole process would take. For example, if a person wanted to begin the process of ending their life, they would go to a doctor and tell them, “This is what I want to do”.
As per your safeguards, could you please walk me through the timeline with regard to how long the palliative care consultation would take, along with the other requirements of the safeguards that are already in the proposed bill?