On Nov. 12, 2020, David Roberge appeared before the House Standing Committee on Justice and Human Rights in support of the CBA End-of-Life Working Group’s submission on Bill C-7. The bill had been reintroduced after dying on the order table when the House was prorogued in late summer. The following is David’s opening statement to the committee. (Check against delivery)
Opening Statement - Canadian Bar Association (David E. Roberge)
Standing Committee on Justice and Human Rights
Bill C-7, Criminal Code Amendments (Medical Assistance in Dying)
November 12, 2020
Introduction
Good morning. Madam Chair and honourable members of the committee. My name is David Roberge and I am a member of the Canadian Bar Association’s End of Life Working Group.
Thank you for inviting the CBA to discuss Bill C-7 today.
The CBA is a national association of 36,000 lawyers, Quebec notaries, law teachers and students, with a mandate to promote improvements in the law and the administration of justice.
Our submission was prepared by the CBA’s End of Life Working Group. This Working Group comprises a cross-section of members drawn from diverse areas of expertise, including constitutional and human rights law, health law, criminal law, wills, estates and trusts law, elder law, children’s law, and privacy and access to information law.
Discussion
While we applaud the government’s efforts to harmonize and clarify the law about MAiD following the Quebec Superior Court’s decision in Truchon, we have some concerns with Bill C-7. I would like to use my opening remarks to outline some of our key concerns.
Eligibility to MAiD should be aligned with the criteria established by the Supreme Court of Canada in Carter, taking into account the protection of vulnerable people.
The CBA Working Group supports the Quebec judgment in Truchon and highlights its interpretation of Carter – namely, that the essence of the Supreme Court decision is not proximity of death, but rather the prevention of intolerable suffering, as well as dignity and the autonomy of the person, for those who are capable to clearly consent to the termination of their life.
We also support a patient-centric approach for capacity and consent, as adopted by the Quebec Superior Court in Truchon.
Exclusion of Mental Illness [proposed section 241.2(2.1)]
Returning to Bill C-7, in our view, mental illness should not be excluded from the scope of the legislation, especially given the full MAiD review – initially planned for June 2020 and now pending. This exclusion forecloses a thorough review of the issue and advances a conclusion that has not been debated or recommended.
In Truchon, the Court stated that vulnerability must be assessed from an individual perspective through informed consent. In our view, the general exclusion of all persons suffering from mental illness is likely to be constitutionally challenged.
Guidance on “natural death (not) reasonably foreseeable”
Bill C-7 proposes two different sets of safeguards for MAiD, the application of which depends on whether the person’s natural death is reasonably foreseeable or not. The criterion of “reasonably foreseeable death,” that was declared unconstitutional in Truchon, has caused significant uncertainty in practice, and Bill C-7 does not give any guidance on how to apply it.
We recommend that guidance be given to avoid confusion on which safeguards apply, and to ensure appropriate access to MAiD.
Impediments to MAiD [proposed section 241.2(3.1) (e)]
We have reservations about the requirement that one of the two assessors must have specific expertise in the condition causing the person’s suffering. Appointments with specialists can take several months, and in some communities are not available. There is currently no requirement that individuals seek specialists when applying for MAiD. It is up to the practitioner to determine their own level of expertise when assessing informed consent, and to make an appropriate referral if need be.
While some situations could justify seeking the opinion of a practitioner with specific expertise, a blanket requirement could have a disproportionate impact for some individuals, and create a significant barrier to MAiD.
Waiver of Final Consent [proposed section 241.2(3.2)]
Bill C-7 proposes that the waiver of final consent to MAiD apply only when death is reasonably foreseeable.
In our view, the waiver of final consent should also apply when death is not reasonably foreseeable, as capacity may be lost in both situations.
Conclusion
On behalf of the CBA, thank you again for the opportunity to present today. I look forward to answering any questions you may have during today’s session.
David Roberge is a partner with McCarthy Tétrault in Montreal.