Interventions in Committee
 
 
 
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Serge Joyal
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Hon. Serge Joyal
2016-01-26 18:06
Thank you, Mr. Joint Chair.
Welcome, Mr. Pelletier.
I would like to talk to you about item 2, which is titled “Mature Minors.” That is on page 54 of your report.
As you know, the Carter decision refers to competent adults. Yesterday, your colleague, Professor Hogg, said that there can be different ages of majority in the Criminal Code. In other words, people can reach the age of majority at 21, 18 or 16 years of age.
The Carter decision established that a competent adult had the right to physician-assisted death. I think that Parliament is not limited by that decision or by a strict interpretation of the definition of an adult. It is Parliament's duty to define what the mental capacity of an individual to express their decision and intention should be.
Setting aside what you noted in your report—especially when it comes to Ontario's Health Care Consent Act, 1996, which does not specify the age at which a minor can express their agreement or disagreement with a treatment—as a law professor, can you suggest what approach the committee should use to define the age of accessibility?
Serge Joyal
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Hon. Serge Joyal
2016-01-26 18:10
So should we not follow the same procedure as Ontario's Health Care Consent Act, 1996, which has been in practice for 20 years and which basically leaves practicians—the professionals—the role or responsibility to decide on the individual's mental capacity in the case of those referred to as “below the adult age of 18 or 21”?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 18:25
Thank you.
Thank you for being here, and thank you for the work you've done.
I want to return briefly to the question that Mr. Rankin asked you earlier with regard to the proposition that Professor Hogg put to us yesterday. I want to get your view as a lawyer and constitutional scholar as well about the authority that the Canada Health Act gives to the Parliament of Canada to act and to move in areas if the provinces or territories do not act.
I think what Professor Hogg was saying was not that we should assume that the provinces wouldn't act, but that we cannot assume that all of them will act and that all of them will act in a way that is consistent with Carter.
Does the Canada Health Act give this Parliament the authority to act in that situation?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 18:27
To assure equality of access and opportunity, if that's the proper term—
James S. Cowan
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Hon. James S. Cowan
2016-01-26 18:27
—there is a responsibility on the part of the federal Parliament.
James S. Cowan
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Hon. James S. Cowan
2016-01-26 18:28
We're both going to be cut off here in a minute, but if I could just say this, I think Professor Hogg's answer to that was equivalency, meaning that there could be a declaration of equivalency if a province came up to a certain standard, even if they did it in a slightly different way. Would you agree with that?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 18:28
It initially has to be amended accordingly.
James S. Cowan
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Hon. James S. Cowan
2016-01-26 19:00
Thank you for being here, and thank you for your work.
In Carter, the terminology used was “grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual”. Do you see any reason to distinguish between mental illness and physical illness?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 19:02
The courts have been very clear on that.
James S. Cowan
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Hon. James S. Cowan
2016-01-26 19:02
I have one more question.
There's the business of conscientious objection. Nobody is trying to force anybody to participate in this process. That protects the practitioner, whether they're a physician or another medical professional. The corollary of that, in looking at it from the point of view of the patient, is how we ensure that there is what I would call an effective referral. That means something more than simply saying, “I can't be involved in this. You're on your own. Go and look it up on the Internet. Go call the medical society, and they may be able to help you”. Don't you agree that we need to design a regime that ensures there is a more effective referral than that?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 19:04
That's the role of the regulatory authorities, the colleges of physicians and such?
James S. Cowan
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Hon. James S. Cowan
2016-01-26 19:05
Exactly. Can I just make sure that your comments would also apply to institutions?
Serge Joyal
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Hon. Serge Joyal
2016-01-26 19:20
I'd like to come back to your recommendation 17, where you propose that competence should be substituted for age as a criteria to have access to physician-assisted dying. Could you explain why you removed the age factor? It could apply below 21 years of age, but it would apply over 21 years of age also. If there's no age factor and no more adult status, then, of course, everything becomes a matter of evaluating the competence.
Could you explain why you proposed that approach to the issue of age as a criteria of eligibility?
Serge Joyal
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Hon. Serge Joyal
2016-01-26 19:23
If I may, I would like to come back to the issue of initial consent given by persons who become incompetent later in life. I would like to understand clearly the distinction between this and a will, whereby a person provides that in a case where the person is suffering from an accident or another disease and loses his autonomy, the person can decide to opt for somebody to consent that they not be maintained artificially in life. It is suicide, in a way, to decide that in such a condition you prefer to die.
What you've proposed, if I understand well, would mean that when a person is diagnosed with a disease or a physical or mental condition that is irremediable, that person could opt at some point in time to have somebody express consent to terminate their life. Do I understand well these conditions through which you would add to the capacity of a person to decide when that person would be dying at a point in life because her physical or mental condition would be totally irremediable?
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